                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              AUG 21 2014

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

ARON EZRA WESSEL,                                No. 12-15784

              Petitioner - Appellant,            D.C. No. 2:09-cv-02720-JFM

  v.
                                                 MEMORANDUM*
R. BARNES, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   John F. Moulds, Magistrate Judge, Presiding

                           Submitted August 14, 2014**
                             San Francisco, California

Before: TASHIMA, McKEOWN, and CLIFTON, Circuit Judges.

       Aron Wessel appeals the district court’s denial of his 28 U.S.C. § 2254

habeas corpus petition challenging his jury convictions stemming from the




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
shooting of his sister’s ex-boyfriend. We have jurisdiction under 28 U.S.C.

§ 2253, and we affirm.

      The California Court of Appeal’s decision rejecting Wessel’s prosecutorial

misconduct claim was not “contrary to” clearly established federal law. Contrary

to Wessel’s contention, the Court of Appeal’s decision did not “appl[y] a rule that

contradicts the governing law set forth in Supreme Court cases,” or “confront[] a

set of facts materially indistinguishable from those at issue in a decision of the

Supreme Court and, nevertheless, arrive[] at a result different from [the Court’s]

precedent.” Moses v. Payne, 555 F.3d 742, 751 (9th Cir. 2009) (amended opinion)

(internal quotation marks omitted). Although the Court of Appeal may have

arguably misstated the prosecutorial misconduct standard articulated in Darden v.

Wainwright, 477 U.S. 168 (1986), neither the reasoning nor the result of the Court

of Appeal’s decision contradicts Supreme Court precedent because the state court

did not, in fact, require a “pattern” of “intemperate behavior.” The Court of

Appeal’s rejection of Wessel’s prosecutorial misconduct claim did not hinge on

any of the linguistic variations identified by Wessel. Instead, it rested on Wessel’s

failure to show that the alleged misconduct resulted in prejudice. Therefore,

Wessel is not entitled to habeas relief on his prosecutorial misconduct claim. See

Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (state court’s decision not


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contrary to clearly established federal law “so long as neither the reasoning nor the

result of the state-court decision contradicts” controlling Supreme Court precedent

(emphasis added)).

      Equally unavailing is Wessel’s related ineffective assistance of counsel

claim based on his trial counsel’s failure to object to the prosecutor’s purported

misconduct. The Court of Appeal’s denial of this claim did not involve an

“unreasonable application” of Strickland v. Washington, 466 U.S. 668 (1984). The

Court of Appeal reasonably determined that trial counsel’s failure to object was not

prejudicial because Wessel failed to show “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Id. at 694. Habeas relief is foreclosed on Wessel’s ineffective

assistance claim because “‘fairminded jurists could disagree’ on the correctness of

the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011)

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

      AFFIRMED.




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