                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                        MAY 20 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

NOEL CALDELLIS,                                 No.    18-35650

                Petitioner-Appellant,           D.C. No. 2:17-cv-00078-RSL

 v.
                                                MEMORANDUM*
MIKE OBENLAND,

                Respondent-Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                    Robert S. Lasnik, District Judge, Presiding

                             Submitted May 16, 2019**
                               Seattle, Washington

Before: O'SCANNLAIN and FRIEDLAND, Circuit Judges, and PAULEY,***
District Judge.

      Petitioner Noel Caldellis was convicted of first-degree murder in

Washington state court after a jury concluded that his shooting into a crowd at a


      *
             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 William H. Pauley III, United States District Judge for
the Southern District of New York, sitting by designation.
party, and thereby killing someone in the crowd, had displayed “extreme

indifference” to human life. Wash. Rev. Code § 9A.32.030(1)(b) (“A person is

guilty of murder in the first degree when . . . [u]nder circumstances manifesting an

extreme indifference to human life, he or she engages in conduct which creates a

grave risk of death to any person, and thereby causes the death of a person.”).

Caldellis appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus

petition challenging that conviction. We affirm.

      We review a district court’s decision to grant or to deny a petition for habeas

corpus de novo. Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). Under the

Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d), a

federal court can grant habeas relief to a state prisoner “on a claim ‘adjudicated on

the merits’ in state court only if the decision ‘was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.’” Waddington v. Sarausad, 555 U.S. 179, 190

(2009) (quoting 28 U.S.C. § 2254(d)(1)). As long as ‘“fairminded jurists could

disagree’ on the correctness of the state court’s decision,” federal habeas relief is

unavailable. Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough

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

      First, the Washington Supreme Court did not act unreasonably in holding

that the prosecutor’s isolated comment during rebuttal about Caldellis’s decision


                                           2
not to testify at trial was a proper response to defense counsel’s closing argument.

If “the prosecutor’s reference to the defendant’s opportunity to testify is a fair

response to a claim made by defendant or his counsel . . . there is no violation of

the privilege [against self-incrimination].” United States v. Robinson, 485 U.S. 25,

32 (1988). Because defense counsel’s closing argument offered the jury a number

of reasons why Caldellis chose not to testify, it was not unreasonable for the state

court to conclude that the prosecutor’s vague reference to another “big” reason

why he did not testify, was both invited by defense counsel’s remarks and not

clearly a direct comment on Caldellis’s guilt.

      We also reject Caldellis’s alternative argument that, if defense counsel did

invite the response, counsel provided ineffective assistance in violation of

Caldellis’s Sixth Amendment rights.1 Ineffective assistance of counsel claims are

governed by the standard set forth in Strickland v. Washington, 466 U.S. 668

(1984), which requires showing that counsel’s deficient performance fell below an

objective standard of reasonableness, id. at 688, and that but for trial counsel’s

unprofessional errors, a more favorable outcome would have been achieved, id. at

694-95. We need not determine whether counsel’s performance was unreasonably


1
 Caldellis’s ineffective assistance of counsel argument may not have been
exhausted in state court, but we need not resolve that question because “[a]n
application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the
courts of the State.” 28 U.S.C. § 2254(b)(2).

                                           3
deficient because Caldellis has failed to show prejudice. The prosecutor’s

comments did not “so infect[] the trial with unfairness as to make the resulting

conviction a denial of due process.” Donnelly v. DeChristoforo, 416 U.S. 637, 643

(1974). In light of the strength of the prosecution’s case and the fact that the jury

received an instruction that comments made during closing arguments are not

evidence, Caldellis has not demonstrated that the outcome of the trial would have

been different had defense counsel refrained from inviting the prosecutor’s rebuttal

comment.

          Second, the Washington Supreme Court determined that the jury instructions

properly set forth the elements of the crime of “extreme indifference” murder

under Washington law. “[A] state court’s interpretation of state law, including one

announced on direct appeal of the challenged conviction, binds a federal court

sitting in habeas corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per

curiam) (citing Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Mullaney v. Wilbur,

421 U.S. 684, 691 (1975)). Because the instructions properly described state law,

Caldellis’s claim that the instructions did not set forth the elements of the crime

fails.2



2
  To the extent Caldellis separately challenges alleged ambiguity in the
instructions, he has not demonstrated a reasonable likelihood that anything else
about the instructions led the jury to apply them in a way that violated his
constitutional rights. See Boyde v. California, 494 U.S. 370, 380 (1990).

                                           4
      Further, the Washington Supreme Court reasonably concluded that because

the jury instructions correctly set forth the elements of the crime, counsel’s

decision not to challenge those instructions also did not amount to deficient

performance. Counsel could not have performed deficiently by failing to challenge

proper jury instructions, Strickland, 466 U.S. at 688, and Caldellis has not

demonstrated that these instructions prevented him from arguing his theory of the

case—that he did not know of and disregard the risk to human life, California v.

Trombetta, 467 U.S. 479, 488 (1984) (the Constitution guarantees that “criminal

defendants be afforded a meaningful opportunity to present a complete defense”).

      Finally, we reject Caldellis’s ineffective assistance of counsel claim based

on counsel’s decision not to request a self-defense instruction for the crime of

murder. The state court reasonably concluded that defense counsel made a

legitimate strategic decision to pursue a defense of excusable homicide instead.

Particularly in light of the deference granted to tactical decisions made by trial

attorneys, Wiggins v. Smith, 539 U.S. 510, 521 (2003), we agree that counsel’s

performance here was not deficient.

      AFFIRMED.




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