                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 16 2013

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                      U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


STEPHEN JAMES WONG,                              No. 11-35574

              Petitioner - Appellant,            D.C. No. 3:10-cv-00473-MA

  v.
                                                 MEMORANDUM*
MARK NOOTH, Superintendent, Snake
River Correctional Institution,

              Respondent - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                Malcolm F. Marsh, Senior District Judge, Presiding

                      Argued and Submitted October 7, 2013

                                 Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

       An Oregon state jury convicted Stephen James Wong of six counts arising

out of his sexual abuse of his minor stepdaughter. Wong now appeals the district

court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
He claims his trial and appellate counsel provided ineffective assistance under

Strickland v. Washington, 466 U.S. 668 (1984). We have jurisdiction pursuant to

28 U.S.C. § 2253, and we affirm.

      The state court’s rejection of Wong’s claims was not an “unreasonable

application” of Strickland. See 28 U.S.C. § 2254(d). Trial counsel was not

ineffective for not objecting to Clare Bruch’s testimony or to the State’s use of the

term “sex offender” in its examination of Bruch. Trial counsel could reasonably

have decided that Bruch was a proper lay witness, see Or. Rev. Stat. § 40.405, and

the state court reasonably found that “sex offender” referred not to Wong’s prior

conviction but to the allegations at issue at trial.

      Wong’s appellate counsel could decline to raise issues he reasonably thought

would not succeed on appeal. Moormann v. Ryan, 628 F.3d 1102, 1109–10 (9th

Cir. 2010). Appellate counsel could reasonably have decided that the trial court

was not required to declare a mistrial after Rose Wong’s inadvertent reference to

Wong’s prior conviction, see State v. Montez, 789 P.2d 1352, 1372–73 (Or. 1990),

and that the jury’s alleged discussion of Wong’s prior conviction did not justify

interviewing jurors, see State v. Cheney, 16 P.3d 1164, 1170–72 (Or. Ct. App.

2000).




                                            2
      Wong’s claim of cumulative error fails because he has not shown any

individual instance of ineffective assistance. See Mancuso v. Olivarez, 292 F.3d

939, 957 (9th Cir. 2002).

      Wong’s unopposed motion to file supplemental excerpts of record is

granted.

      AFFIRMED.




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