                                                                              FILED
                               NOT FOR PUBLICATION                             JAN 06 2014

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



                               FOR THE NINTH CIRCUIT

 VIRGIL PINERO NARVAEZ,                               No. 10-56485

            Petitioner-Appellant,                     D.C. No. CV-08-03932-PSG-

   v.                                                 DTB

   L. E. SCRIBNER, Warden

            Respondent-Appellee.                      MEMORANDUM*


                        Appeal from the United States District Court
                            for the Central District of California
                        Philip S. Gutierrez, District Judge, Presiding

                                Submitted August 28, 2013**
                                   Pasadena, California

Before:          GOULD and RAWLINSON, Circuit Judges, and LEMELLE, District
Judge.***


        Appellant Virgil Pinero Narvaez appeals the district court’s denial of his 28


        This disposition is not appropriate for publication and is not precedent
        *

except as provided by Ninth Circuit Rule 36-3.

         The panel unanimously concludes this case is suitable for decision
        **

without oral argument. See Fed. R. App. P. 34(a)(2).

         The Honorable Ivan L. R. Lemelle, District Judge for the U.S. District
        ***

Court for the Eastern District of Louisiana, sitting by designation.
                                              1
U.S.C. § 2254 habeas petition, which challenges his conviction for three counts of

lewd acts upon a child under the age of 14 years based on ineffective assistance of

counsel by failing to make a closing argument. We affirm.

      Under Section 2254 of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), a petition for habeas corpus relief that was adjudicated on the

merits in state court cannot be granted unless the state court's decision was “contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

AEDPA thus imposes a “highly deferential” standard of review that “demands that

state-court decisions be given the benefit of the doubt.” Cannedy v. Adams, 706 F.3d

1148, 1156 (9th Cir. 2013). Here, the district court properly reviewed the California

Court of Appeal's decision as the last, and only, reasoned decision by a state court on

Narvaez's ineffective assistance of counsel claim. See id. at 1157-58 (because the

state's supreme court summarily denied the habeas petition, the federal court must

“look through” the state's supreme court judgment to the last reasoned state-court

decision on petitioner's current federal claims).     Narvaez fails to show that the

California Court of Appeal's rejection of his ineffective assistance of counsel claim

was “so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.”


                                          2
Harrington v. Richter, 562 U.S. __, 131 S.Ct. 770, 786-87 (2011); see also

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004).

      Narvaez correctly cites Strickland v. Washington, 466 U.S. 668 (1984) and Bell

v. Cone 535 U.S. 685 (2002) as the relevant “clearly established Federal law” for an

ineffective assistance of counsel claim based on waiver of closing argument. 28

U.S.C. § 2254(d); see also Weighall v. Middle, 215 F.3d 1058 (9th Cir. 2000).

However, he incorrectly urges that waiver of closing argument can only be non-

prejudicial when defense counsel makes that decision within hours of delivering an

opening statement in order to remind jurors of inconsistencies in the prosecution's

case. Regarding the short time frame, the Supreme Court in Bell analyzed the state

court's determination that the waiver of closing argument would always amount to

deficient performance, not its review of prejudice. Bell, 535 U.S. at 701. In

addition, Bell was based on a review of the entire record, not just a consideration of

temporal circumstances. It held that Strickland requires courts to “indulge a strong

presumption that counsel's conduct falls within the wide range of reasonable

professional assistance because it is all too easy to conclude that a particular act or

omission of counsel was unreasonable in the harsh light of hindsight.” Id. at 702,

(quoting Strickland, 466 U.S. at 689). Deference is particularly due when applying

the Strickland test. “The more general the rule, the more leeway courts have in


                                          3
reaching outcomes in case-by-case determinations.” Yarborough, 541 U.S. at 664; see

also Richter, 131 S.Ct. at 788 (describing the Strickland standard as a general one).

       The California Court of Appeal required a showing by Narvaez that (1) his

counsel’s performance fell below an objective standard of reasonableness and (2)

there is a reasonable probability that, but for his defense counsel's unprofessional

errors, the result of trial would have been different. By waiving closing argument, the

court noted that Narvaez's counsel could have “reasonably. . .concluded that there

was no need to reiterate the straightforward defense or give the prosecutor a second

opportunity to argue.”

      Narvaez argues that in the context of emotionally charged incestuous child

abuse and rape charges, the trial jury needed the guidance of closing argument to

refocus on the facts, remind them of their duty to be dispassionate, and respond to the

prosecutor's “eloquent attempt to minimize the inconsistencies and various flaws in

his case.” However, the state courts and district court correctly found that counsel

“thoroughly” presented the defense without closing argument by delivering a detailed

opening statement, effectively cross-examining the victim, soliciting favorable

defense testimony, and presenting defense exhibits. The courts also reasoned that

the jury's inability to reach a verdict on the forcible rape charge further supported a

finding that the jury “understood and considered petitioner's defense.” Under the


                                          4
foregoing circumstances, the state court correctly noted that the decision to waive

closing argument was a reasonable strategic choice because the waiver denied the

prosecution the opportunity to argue in response.

      At most, petitioner's claims amount to “fairminded disagreement” with the state

court's well-justified ruling. As such, we cannot say that the state court's application

of the relevant standards under Strickland and Bell was objectively unreasonable or

contrary to federal law.

      AFFIRMED.




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