          United States Court of Appeals
                     For the First Circuit


No. 18-2028

                           YARA CHUM,

                     Petitioner, Appellant,

                               v.

                    PATRICIA ANNE COYNE-FAGUE,
     Acting Director of the Adult Correctional Institutions,

                      Respondent, Appellee.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF RHODE ISLAND

       [Hon. John J. McConnell, Jr., U.S. District Judge]


                             Before

                   Lynch, Lipez, and Thompson,
                         Circuit Judges.


     Camille A. McKenna, Assistant Public Defender, Appellate
Division, Rhode Island Public Defender, for petitioner.
     Lauren S. Zurier, Assistant Attorney General, Office of the
Attorney General, for respondent.


                        January 27, 2020
           LIPEZ, Circuit Judge.        Petitioner Yara Chum, who was

convicted in Rhode Island state court on felony assault and

firearms charges, claims that he was denied his Sixth Amendment

right to the effective assistance of counsel when his attorney did

not move for a mistrial after the State failed to introduce

evidence   of   Chum's    confession   described    in   the   prosecutor's

opening statement.       Chum now seeks a writ of habeas corpus on the

ground that the Rhode Island Supreme Court's evaluation of his

constitutional claim was contrary to, or involved an unreasonable

application of, federal law.      Specifically, Chum contends that the

state court applied an "incurable prejudice" standard, rather than

the prejudice standard established in Strickland v. Washington,

466 U.S. 668 (1984).      Incurable prejudice is the standard used in

Rhode Island to assess whether a prosecutor's improper statements

made to a jury prejudiced the defendant in a way that cannot be

corrected through instructions by the judge, such that a mistrial

is required.    See State v. Perry, 779 A.2d 622, 628 (R.I. 2001).

           Because   we    conclude    that   the   Rhode   Island   Supreme

Court's use of the incurable prejudice standard in the course of

assessing Chum's ineffective assistance of counsel claim was not

contrary to, or an unreasonable application of, federal law, we

affirm the district court decision denying the petition for habeas

corpus relief.


                                   - 2 -
                                        I.

A. Factual Background

            Chum   was    convicted    on    assault   and   firearms    charges

stemming from his participation in a shooting in Providence, Rhode

Island, in March 2009, after "a drug deal [went] awry."                 State v.

Chum, 54 A.3d 455, 457 (R.I. 2012).            Chum was not involved in the

drug transaction, but he and his associate Samnang Tep confronted

three men who lived with the drug dealer about their involvement

in a conflict that followed the disputed marijuana sale.                      As a

result of the dispute, someone had shattered the windows at the

residence of Chum's friend, and Chum asked the three men, while

they stood on their front porch, whether they were to blame. After

a verbal exchange, the conflict escalated.              Chum ordered Tep to

shoot the men on the porch.             Tep fired a single shot in the

direction of the porch, hitting the porch railing.                 No one was

hit.

            Chum   was    arrested     shortly    thereafter.     Later       that

evening, after indicating that he understood his Miranda rights,

he   made   an   oral    statement    admitting   he   was   involved    in    the




                                      - 3 -
shooting.1    At trial, the prosecutor referenced Chum's admission

in his opening statement2:

     I told you we'd prove this case with witnesses; we'd
     also prove it with the defendant's words himself,
     because, when the detectives came to the Cranston Police
     Department, they read him his rights and sat down and
     talked to him. And the defendant told him that he was
     contacted by Erin [Murray] and told that she needed him
     to take care of something; that she wanted them to take
     care of some kid named Frankie for smashing her windows;
     that he drove down to Peach Avenue with Matthew
     DePetrillo and Erin [Murray] so that they could point
     out the house; that he approached the house with a
     friend, Vang Chhit; that he approached some guys on the
     porch; that he ordered Chhit to shoot the guys; that
     Erin [Murray], Matthew DePetrillo and Samnang Tep were
     in a different car waiting around the corner; and that
     he and Chhit fled in separate cars, one red, and one
     white.    You'll hear that.     You'll hear about the
     defendant giving that statement to the Providence
     Police.

Chum v. State, 160 A.3d 295, 297 (R.I. 2017).3            Despite these

comments,    the   State   never   introduced   Chum's   statement   into

evidence.    However, the trial justice admonished the jury four




     1 Chum's motion to suppress his statement was denied after an
evidentiary hearing. The Rhode Island Supreme Court affirmed that
decision in Chum's direct appeal. Chum, 54 A.3d at 461-62.
     2 The prosecutor's opening statement references numerous
individuals by name. Because the roles of these individuals within
the conflict are not material to our analysis, we do not provide
background about them.
     3 The evidence at trial showed that Tep, rather than Chhit,
was the shooter, despite the prosecutor's comment that Chum had
identified Chhit as the shooter in his statement to the police.
Chum, 160 A.3d at 297 n.3.
                                   - 4 -
times during the trial that the statements of lawyers are not

evidence.4

B. Procedural History

             At the close of trial, the court entered a judgment of

acquittal on a count charging conspiracy to commit assault with a

dangerous weapon and the State dismissed a charge of carrying a

firearm while committing a crime of violence.        However, the jury

convicted Chum on the three remaining counts: two counts of assault

with a dangerous weapon and one count of discharging a firearm

while committing a crime of violence.      After denying Chum's motion

for a new trial, the trial justice sentenced Chum to ten years'

imprisonment     on   each   felony   assault   count,   to   be   served

concurrently, and a consecutive ten-year sentence on the firearms

count, with five years to serve and five years suspended, with

probation.




     4 Although Chum's trial counsel did not request them, the
trial justice gave the following standard instructions to the jury:
(1) "I tell you now, and I probably will remind you before this
case is over, the statements of lawyers are not evidence"; (2) "I
told you before we started, ladies and gentlemen, that the
statements of lawyers are not evidence"; (3) "I told the jury
earlier, when we started this trial, that statements [of] lawyers
are not evidence"; and (4) "Counsel will now address you, and I,
again, remind you of what I said before, and that is that their
statements and their arguments are not evidence. If the lawyer
says something that doesn't correlate with your memory, it's your
memories that count, not the memories of counsel." Chum, 160 A.3d
at 298 n.5.
                                  - 5 -
             After his conviction was affirmed by the Rhode Island

Supreme Court, Chum applied for postconviction relief based on the

ineffective      assistance     of   counsel,    asserting       that   his     lawyer

violated his Sixth Amendment right by failing to move for a

mistrial    or    request   a    curative      instruction   after      the     State

described Chum's alleged confession in its opening statement but

did not introduce evidence of the confession.                    The Rhode Island

Superior Court denied the application, in a decision written by

the trial justice who had presided over Chum's trial.                         In that

decision, the trial justice stated that he would not have granted

a mistrial if Chum's counsel had moved for one.                    Chum v. State,

No. PM131919, 2014 WL 6855341, at *3 (R.I. Super. Ct. Dec. 1,

2014).     The trial justice also noted the "overwhelming" evidence

of Chum's guilt and the fact that the court had reminded the jury

four separate times that statements of counsel were not evidence.

Id.   In 2017, the Rhode Island Supreme Court affirmed.                   Chum, 160

A.3d at 296.

             Chum filed a petition for a writ of habeas corpus in

federal    court   pursuant     to   28   U.S.C.     §   2254,    again    claiming

ineffective      assistance     of   counsel    in   violation     of     the   Sixth

Amendment.       Chum argued that, because of the unique power of

confession evidence, his lawyer's failure to move for a mistrial

was highly prejudicial, rising to the level of constitutionally

deficient assistance of counsel.              The district court denied the
                                      - 6 -
petition on the merits in October 2018, holding that the Rhode

Island Supreme Court's decision was neither contrary to nor an

unreasonable      application       of    the    federal    standard      governing

ineffective assistance of counsel claims.               Chum v. Wall, No. 17-

541-JJM-LDA,      2018   WL   4696739,      at   *1   (D.R.I.    Oct.     1,   2018).

Although    the    district    court      concluded     that     Chum's    lawyer's

performance was constitutionally deficient, it determined that the

Rhode Island Supreme Court's conclusion that Chum had not satisfied

the prejudice prong, given the weight of the evidence and the trial

justice's    cautionary       instructions,       was    not     an   unreasonable

application of clearly established federal law.                       Id. at *4-5.

However, the district court issued a certificate of appealability

and Chum timely filed this appeal.

                                          II.

            Pursuant     to   the    Antiterrorism         and   Effective      Death

Penalty Act of 1996 ("AEDPA"), if the state court has adjudicated

an appellant's claims on the merits, a federal court may grant

habeas relief only if the state court's adjudication "resulted in

a decision that 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),

or "resulted in a decision that was based on an unreasonable

determination of the facts in light of the evidence presented in


                                         - 7 -
the State court proceeding," id. § 2254(d)(2).          Chum asserts a

claim under the first section only.

          An adjudication is contrary to clearly established law

if the state court "'applies a rule that contradicts the governing

law set forth' by the Supreme Court or 'confronts a set of facts

that are materially indistinguishable from a decision of [the

Supreme Court] and nevertheless arrives at a result different from

[its] precedent.'" Gomes v. Brady, 564 F.3d 532, 537 (1st Cir.

2009) (alterations in original) (quoting Williams v. Taylor, 529

U.S. 362, 405-06 (2000)). An adjudication involves an unreasonable

application "if the state court identifies the correct governing

legal principle from the Supreme Court's then-current decisions

but unreasonably applies that principle to the facts of the

prisoner's case."   Abrante v. St. Amand, 595 F.3d 11, 15 (1st Cir.

2010) (internal quotation marks omitted).

          When, as here, the district court does not engage in

independent   factfinding   in   a   federal   habeas   case,   "we   are

effectively in the same position as the district court vis-à-vis

the state court record."    Pike v. Guarino, 492 F.3d 61, 68 (1st

Cir. 2007).

                                 III.

A. Ineffective Assistance of Counsel Standard

          To succeed with a Sixth Amendment claim of ineffective

assistance of counsel, a petitioner must establish both that his
                                 - 8 -
"counsel's representation fell below an objective standard of

reasonableness," known as the performance prong, and that "there

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

errors, the result of the proceeding would have been different,"

known as the prejudice prong. Strickland, 466 U.S. at 688, 694.

Only the prejudice prong is at issue here.5

                  To successfully prove prejudice, a petitioner may not

simply show that counsel's errors had "some conceivable effect on

the outcome," but, on the other hand, he also "need not show that

counsel's deficient conduct more likely than not altered the

outcome in the case."         Id. at 693.         Rather, a petitioner must show

that,       but    for   counsel's    deficient      performance,     there   is    a

"reasonable         probability"     of   a   different    outcome,    meaning     "a

probability sufficient to undermine confidence in the outcome."

Id. at 694.

B.   Rhode Island's "Incurable Prejudice" Standard

                  Under Rhode Island law, trial courts use an "incurable

prejudice" standard to assess whether improper comments made by a

prosecutor create reversible error. Perry, 779 A.2d at 628. Under

this standard, "reversible error occurs if the allegedly improper




        5
       Rhode Island has conceded, for purposes of this appeal, that
Chum has established his attorney's deficient performance.
Therefore, we will not address that prong of the Strickland
analysis.
                                          - 9 -
comment was so flagrantly impermissible that even a precautionary

instruction would have been insufficient to dispel the prejudice

in the jurors' minds and to assure [a] defendant a fair and

impartial trial."       State v. Collazo, 446 A.2d 1006, 1010 (R.I.

1982).

               While incurable prejudice "inheres" in prosecutorial

comments that "'are totally extraneous to the issues in the case

and tend to inflame and arouse the passions of the jury' against

the defendant," comments that do not create such flagrant bias

must be assessed with the other circumstances of the case in mind.

Ware, 524 A.2d at 1112 (quoting State v. Mancini, 274 A.2d 742,

748 (R.I. 1971)).       "Determination of whether a challenged remark

is harmful or prejudicial cannot be decided by any fixed rule of

law."       Collazo, 446 A.2d at 1010.   Rather, in assessing whether a

challenged remark has created incurable prejudice, a trial justice

"must evaluate [the comment's] probable effect on the outcome of

the case by examining the remark in its factual context."           Id.

Thus, the weight of the evidence is relevant, as are any curative

instructions, in deciding whether a prosecutor's remarks have

created incurable prejudice, requiring either a mistrial to be

granted or, on appeal, a conviction to be vacated.6         See, e.g.,


        6
       In addition to the weight of the evidence and curative
instructions, the fact that defense counsel did not move for a
mistrial or request curative instructions in response to a
prosecutor's improper statements can also be evidence under Rhode
                              - 10 -
Perry, 779 A.2d at 627-28 (finding no incurable prejudice and

upholding conviction given overwhelming evidence of guilt and

curative instructions given by the trial justice, even though

prosecutor stated in opening that a confidential informant would

testify about defendant's alleged admissions, but the informant

did not do so); Ware, 524 A.2d at 1113 (holding that prosecutor's

statements did not create incurable prejudice in light of the

curative   instructions    and   "ample   independent   evidence"   of

defendant's guilt).       Under Rhode Island law, a motion for a

mistrial is left to the discretion of the trial justice and "will

not be disturbed on appeal unless clearly wrong."       Ware, 524 A.2d

at 1112.

                                  IV.

           In denying Chum's petition for postconviction relief

based on ineffective assistance of counsel, the Rhode Island

Supreme Court articulated the correct standard for ineffective




Island law that the statements did not cause incurable prejudice.
See, e.g., Perry, 779 A.2d at 628. In the context of a direct
appeal, the Rhode Island Supreme Court sometimes looks to the
defense   counsel's   own   course   of   action   after   improper
prosecutorial comments to assess how prejudicial the comments
were: if the statements were highly prejudicial, defense counsel
would have responded, either by moving for a mistrial or seeking
another remedy. However, in this post-conviction challenge, the
Rhode Island Supreme Court rightly did not rely on the defense
counsel's response in concluding that there was no incurable
prejudice.   Here, defense counsel's failure to respond to the
prosecutor's comments is precisely what is at issue in this appeal.
                                 - 11 -
assistance, laid out in Strickland.                 It then framed the issue

presented    in    terms    of     Rhode   Island's        state   law   "incurable

prejudice" standard: the case required it to decide "whether a

prosecutor's reference to an admission in an opening statement and

subsequent    failure      to    introduce    it    into    evidence     amounts   to

incurable prejudice."           Chum, 160 A.3d at 299-300.

             Chum argues that the state court's use of the incurable

prejudice    standard      was    contrary     to   the     Strickland    prejudice

standard, and the state court's conclusion that there was no

prejudice    was   an    unreasonable        application      of   the   Strickland

standard because there is a reasonable probability that, if the

trial attorney had moved for a mistrial, it would have been

granted.7    We consider each of these two contentions in turn.

A. "Contrary To" Strickland

             1. Waiver

             Although Chum asserted generally in his habeas petition

in the district court            that the Rhode Island Supreme Court's

decision was either "contrary to, or an unreasonable application




     7 Chum argues that, when failure to move for a mistrial is
the basis for an ineffective assistance of counsel claim, showing
a reasonable probability that a mistrial would have been granted
satisfies the Strickland prejudice standard.       We agree and,
therefore, need not address his alternative argument that, to the
extent that a petitioner must also show a reasonable probability
of prevailing at a new trial, he would satisfy even this higher
burden.
                                      - 12 -
of," federal law, he did not develop any argument regarding the

"contrary to" prong, including any argument about the Rhode Island

Supreme Court's application of the incurable prejudice standard.

Rather, his argument focused on the Rhode Island Supreme Court's

use of the Strickland prejudice standard without reference to its

use of the State's incurable prejudice standard.               Accordingly, the

government now argues that Chum has waived the primary argument he

makes on appeal: that the Rhode Island Supreme Court's use of the

incurable prejudice standard is contrary to clearly established

federal law.

            To   rebut   this   waiver     argument,    Chum    points   to    the

district court's conclusion that the Rhode Island Supreme Court's

decision was neither contrary to, nor an unreasonable application

of, clearly established federal law.          But Chum's general reference

to both prongs of § 2254, and the district court's conclusion that

neither had been satisfied, is no substitute for the development

of a "contrary to" argument, in general, or his argument regarding

incurable prejudice, in particular, in the district court.                    Chum

is certainly vulnerable to a waiver argument.

            We   confronted     this    identical   issue      in   Castillo    v.

Matesanz, 348 F.3d 1 (1st Cir. 2003).          In that case, we held that,

when   a   petitioner    seeking       postconviction    relief     pursues     an

argument on appeal that he failed to develop in his habeas petition

in the district court, an appellate court may nonetheless address
                                   - 13 -
the merits of the inadequately preserved argument in exceptional

cases.    See id. at 12.   Among the relevant factors to consider are

whether the argument concerns constitutional rights of both the

appellant and future defendants, raises an important question of

law, can be resolved on the existing record, was fully briefed by

the parties, and is likely to be repeated in future cases.        See

id.

            Chum's argument concerning the "incurable prejudice"

standard is a pure question of law, which may be resolved without

additional factfinding and based on the briefs filed by the

parties.    Rhode Island is likely to continue applying this state

standard in the context of ineffective assistance of counsel

claims, and whether the use of the "incurable prejudice" standard

resulted in a decision contrary to Strickland implicates important

constitutional rights of Chum and, potentially, other petitioners

in Rhode Island. We therefore consider the merits of Chum's claim.

          2.   The Rhode Island Supreme Court's Reliance on the
Incurable Prejudice Standard8

                 a.   The Rhode Island Supreme Court's Decision

            After articulating the ineffective assistance standard

laid out in Strickland and the incurable prejudice standard for


      8We reject the State's attempt to dispose of Chum's claim by
asserting that the state high court referenced the Rhode Island
incurable prejudice standard in assessing only the performance
prong -- which is not at issue in this appeal -- of Chum's
ineffective assistance claim, not as part of the prejudice
                              - 14 -
assessing the prejudice stemming from a prosecutor's improper

opening statements, the Rhode Island Supreme Court reviewed the

steps Chum's lawyer could have taken when the government failed to

introduce evidence of Chum's confession as promised.    Chum's trial

counsel could have (1) commented on the government's unfulfilled

promise in his closing argument; (2) moved for a mistrial; or

(3) requested a curative instruction.    Chum, 160 A.3d at 299.

          The Rhode Island Supreme Court explained why there was

no prejudice stemming from Chum's counsel's failure to pursue any

of these options.   First, the court concluded that the evidence,

including testimony from three eyewitnesses to the shooting, was

"overwhelming."   Id. at 300.   Second, the trial justice sua sponte

instructed the jury four times over the course of the trial that

statements of counsel are not evidence.     Id.   Finally, the court

concluded that "the trial attorney's failure to move for a mistrial

was not prejudicial because the trial justice, in denying Chum's

application for postconviction relief, stated that he would not

have granted a mistrial even if the attorney had so moved." Id.




analysis. Under the State's theory, Chum's "contrary to" argument
fails because the state court never used the incurable prejudice
standard to assess the prejudice prong and, therefore, could not
have impermissibly replaced the appropriate Strickland prejudice
standard with the state standard. This reading of the Rhode Island
Supreme Court's decision is untenable.
                                - 15 -
                      b. The Propriety of the State High Court's Analysis

              Chum's argument in this court focuses exclusively on the

Rhode Island Supreme Court's analysis of the prejudice stemming

from his lawyer's failure to move for a mistrial.                   Chum contends

that the court improperly assessed that deficiency by replacing

the reasonable probability test from Strickland with the state law

incurable prejudice standard.            According to Chum, evaluating the

prejudice issue under the wrong standard resulted in a decision

contrary to federal law.          We disagree.         The Rhode Island Supreme

Court did not replace or otherwise equate Strickland with its own

standard, nor do we believe it would have been proper to do so.

Rather, fairly read, the Rhode Island Supreme Court's opinion

asked,   in     accordance      with   Strickland,       whether    there   was   a

reasonable probability that the trial justice would have granted

a mistrial motion.          In this case, the answer to that question

depended on the state law incurable prejudice standard.

              Under     Rhode   Island     law,   as    explained    above,   the

incurable prejudice standard governs whether a court should grant

a   mistrial    based     on    improper   prosecutorial      comments.       When

assessing whether a mistrial is warranted in such circumstances,

a court must ask whether the comments have caused prejudice that

is "inexpiable and incurable by timely instructions."                  Ware, 524

A.2d at 1112.         Thus, if Chum's lawyer had moved for a mistrial,


                                       - 16 -
the trial justice would have asked whether the comments that formed

the basis for the request had caused incurable prejudice.

             The    Rhode      Island     Supreme         Court's        assessment     of

Strickland prejudice based on a failure to move for a mistrial,

therefore,    required      it   to     apply       the   Rhode     Island       incurable

prejudice standard.         To determine whether there was a reasonable

probability that Chum's trial would have resulted in a different

outcome -- a mistrial -- the Rhode Island Supreme Court had to

assess the likelihood that a mistrial would have been granted under

its   own   state    law.      Although       the    state   high        court    did   not

explicitly link the two standards in this way, its analysis reveals

reliance    on     that   logic.        Put    differently,         to    evaluate      the

likelihood of a different outcome if counsel had performed as Chum

insists he should have, the Rhode Island Supreme Court needed to

consider -- under Rhode Island law -- what would have happened if

counsel had sought a mistrial.                To do that, the court needed to

apply     Rhode     Island's     incurable       prejudice        standard        to    the

circumstances of Chum's trial.                And that standard required the

court to consider not only the prosecutorial error but also the

weight of the evidence and curative instructions.9


      9To be clear, Chum has not argued that Rhode Island's
"incurable prejudice" standard is too high to appropriately gauge
whether the prosecutor's improper opening remarks violated his
right to a fair trial under the Due Process Clause. See, e.g.,
Obershaw v. Lanman, 453 F.3d 56, 65 (1st Cir. 2006) (explaining
that a prosecutor's statement may "so infect[ ] the trial with
                              - 17 -
              Thus, in assessing whether defense counsel's failure to

move    for    a    mistrial   prejudiced   Chum   for    purposes   of    his

postconviction ineffective assistance claim, the Rhode Island

Supreme     Court    appropriately   considered    what   it   concluded   was

"overwhelming evidence" of Chum's guilt, as well as the curative

instructions the trial justice had given four times over the course

of the trial.       The state high court held that, in light of these

circumstances, the prosecutor's comments had not created incurable

prejudice, and thus a mistrial would not have been granted under

state law.10       The Rhode Island Supreme Court did not conclude its



unfairness as to make the resulting conviction a denial of due
process"). Because Chum has raised only an ineffective assistance
of counsel claim, rather than a Due Process claim, we do not
address the latter.
       10
        In his decision denying Chum's petition for postconviction
relief based on ineffective assistance of counsel, the trial
justice of the Superior Court, who also presided over Chum's trial,
stated that he would not have granted a motion for a mistrial if
Chum's lawyer had so moved. The Rhode Island Supreme Court cited
this as one reason for concluding that Chum had not shown that his
lawyer's failure to move for a mistrial had prejudiced him for
Strickland purposes. Strickland makes clear that a reviewing court
should not assess the prejudice stemming from trial counsel's
deficient performance based on the particular trial judge assigned
to the case. Rather, "[t]he assessment of prejudice should proceed
on the assumption that the decisionmaker is reasonably,
conscientiously, and impartially applying the standards that
govern the decision . . . not . . . on the idiosyncrasies of the
particular decisionmaker" who presided at the trial level.
Strickland, 466 U.S. at 695. Thus, the Rhode Island Supreme Court
had an obligation to assess whether the relevant state law standard
-- here, the incurable prejudice standard governing motions for
mistrials -- had been satisfied and whether such a motion was
likely to be granted.    It could not simply defer to the trial
justice's retrospective comment about how he would have handled a
                               - 18 -
analysis     by   stating   explicitly   that      there   is   no   reasonable

probability that, if trial counsel had moved for a mistrial, the

outcome of the proceeding would have been different.                 But it is

clear from the court's recitation of the Strickland standard,

coupled with its incurable prejudice analysis, that it concluded

that there was no reasonable probability that such a motion would

have been granted and, thus, the failure to so move could not

result in Strickland prejudice. We, therefore, hold that the Rhode

Island Supreme Court's use of the incurable prejudice standard did

not lead to a decision "contrary to" federal law.

B. "Unreasonable Application" of Strickland

             Chum also argues that the Rhode Island Supreme Court's

application of Strickland was unreasonable because there is a

reasonable probability that the trial justice would have granted

a mistrial if Chum's counsel had moved for one, given the unique

power   of   confession     evidence   and   the   otherwise    underwhelming

evidence against him. We disagree. The Rhode Island Supreme Court

held that, in light of the overwhelming evidence against Chum,



motion for a mistrial, if Chum's counsel had so moved. Given the
multi-factor analysis employed by the Rhode Island Supreme Court
in assessing the incurable prejudice issue, it is clear that the
Rhode Island Supreme Court did not simply defer to the trial
justice's after-the-fact comment. In other words, it is apparent
from the rest of the Rhode Island Supreme Court's analysis that it
concluded, from its independent application of the incurable
prejudice standard, that a mistrial was not warranted under Rhode
Island law.
                                   - 19 -
including three eyewitnesses to the shooting, and the curative

instructions given, a mistrial would not have been granted based

on Rhode Island's standard for assessing such a motion.                   Chum

disagrees   with   the    court's   assessment   of   the   weight   of   the

evidence, but he has not shown why the state high court's analysis

was unreasonable.

                                      V.

            For the reasons set forth above, we conclude that the

Rhode Island Supreme Court's use of the state law incurable

prejudice standard did not result in a decision that is contrary

to, or an unreasonable application of, the federal standard for

assessing prejudice established in Strickland.              Accordingly, we

affirm the district court's denial of Chum's petition for a writ

of habeas corpus.

            So ordered.




                                    - 20 -
