                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 01 2010

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MANSOUR HEIDARI,                                 No. 08-35870

              Petitioner - Appellant,            D.C. No. 2:07-cv-02016-MJP

  v.
                                                 MEMORANDUM *
DAN PACHOLKE,

              Respondent - Appellee.



                   Appeal from the United States District Court
                     for the Western District of Washington
                   Marsha J. Pechman, District Judge, Presiding

                       Argued and Submitted June 10, 2010
                              Seattle, Washington

Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.

       Washington prisoner Mansour Heidari appeals the district court’s denial of

his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have

jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review de novo the district court’s denial of Heidari’s habeas petition.

See, e.g., Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). We may grant relief

only if “the state court adjudication of the merits of a claim ‘(1) 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;

or (2) resulted in a decision that was based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.’” Id. (quoting

28 U.S.C. § 2254(d)).

      We reject Heidari’s claim that an improper remark by the prosecutor during

closing argument deprived him of a fair trial. Even if the prosecutor committed

misconduct, the prosecutor’s remark did not render Heidari’s entire trial so unfair

that he was denied due process under the standards set forth in Darden v.

Wainwright, 477 U.S. 168, 178-83 (1986), and Donnelly v. DeChristoforo, 416

U.S. 637, 643-45 (1974). The challenged remark was “but one moment in an

extended trial,” Donnelly, 416 U.S. at 645, and did not amount to “the introduction

of specific misleading evidence,” id. at 647, as was the case in Giglio v. United

States, 405 U.S. 150 (1972). And, as in Darden, 477 U.S. at 182, the jury in

Heidari’s case was instructed that the arguments of counsel were not evidence.

Thus, in light of these factors, although the evidence against Heidari was not


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necessarily as strong as the evidence against the petitioner in Darden, see id., the

state court’s decision was not contrary to or an unreasonable application of

applicable Supreme Court precedent.

        We also reject Heidari’s claim that he was denied effective assistance of

counsel because of his trial counsel’s failure to object to the challenged remark.

Even if Heidari could rebut the “strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance,” Strickland v.

Washington, 466 U.S. 668, 689 (1984), the Washington Supreme Court’s

conclusion that Heidari has not shown prejudice is not contrary to or an

unreasonable application of federal law. The prejudice to be proven “requires

showing that counsel’s errors were so serious as to deprive the defendant of a fair

trial.” Id. at 687. Because the prosecutor’s remark did not itself deprive Heidari of

a fair trial, his counsel’s failure to object to that remark did not deprive Heidari of a

fair trial.

        The district court’s denial of Heidari’s habeas petition is

        AFFIRMED.




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