                                                                          FILED
                           NOT FOR PUBLICATION                             OCT 18 2013

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



                           FOR THE NINTH CIRCUIT


WILLIAM J. WEYHRICH,                             No. 11-35092

              Petitioner - Appellant,            D.C. No. 3:04-cv-00301-JO

  v.
                                                 MEMORANDUM*
MARK NOOTH,

              Respondent - Appellee.


                  Appeal from the United States District Court
                            for the District of Oregon
                 Robert E. Jones, Senior District Judge, Presiding

                           Submitted October 9, 2013**
                               Portland, Oregon

Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.

       William Weyhrich appeals from the district court’s denial of his habeas

petition challenging his state kidnaping and assault conviction. Weyhrich claims

that his trial counsel provided ineffective assistance of counsel (“IAC”) when he


        *
             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).
successfully objected to the prosecutor’s closing remarks but did not move to strike

or for a mistrial. The district court, applying the Antiterrorism and Effective Death

Penalty Act (“AEDPA”), 28 U.S.C. § 2254, deferred to the state court’s denial of

relief, noting that the prosecutor’s improper comments were relatively brief,

defense counsel’s decision not to seek further relief was reasonable, and the case

against Weyhrich was strong. Weyhrich filed a timely notice of appeal from the

district court’s final order and we affirm the denial of the petition.1

      The AEDPA provides that for relief to be granted by a federal court on a

state habeas petition, the petitioner must show that the state courts’ denial of relief

was either ‘contrary to, or involved an unreasonable application of, clearly

established Federal law” or “based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. §

2254(d). A petitioner seeking relief for IAC must show that his attorney’s

performance was deficient and that the deficient performance prejudiced the

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Furthermore, the

Supreme Court has held that where habeas relief is sought based on IAC in a state




      1
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.

                                           2
court, the petitioner must show that the state court’s application of the Strickland

standard was unreasonable. Harrington v. Richter, 131 S. Ct. 770, 785 (2011).

      Weyhrich has failed to meet this burden. When the prosecutor in his closing

argument insinuated that Weyhrich was guilty because he wanted an attorney and

that the attorney would help him concoct a dishonest defense, defense counsel

immediately objected and the objection was sustained. On post-conviction review,

the Oregon state court found that defense counsel reasonably thought the jury was

not impressed by the prosecutor’s improper argument and that the failure to move

to strike or for a mistrial did not prejudice Weyhrich.

      We agree. Weyhrich has not shown that his trial counsel’s failure to move

to strike the prosecutor’s comment or to move for a mistrial fell below the “wide

range of reasonable professional assistance.” Strickland, 466 U.S. at 689. While

we have held that a prosecutor’s improper remarks may deny a defendant a

fundamentally fair trial, see Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983), in

Bruno, the improper remarks were extensive and defense counsel’s objection was

overruled. Id. at 1194 n.2. Here, the prosecutor was only able to make a single

statement with two negative implications before defense counsel objected and the

objection was sustained.




                                          3
      Weyhrich asserts that under Oregon law, failing to move for a mistrial

cannot be part of any legitimate trial strategy, citing Simpson v. Coursey, 197 P.3d

68 (Or. Ct. App. 2008). Simpson is inapposite because it concerned the improper

vouching by a government agent of the credibility of the victim and key witness.

Id. at 71-72. Moreover, Simpson is an Oregon state court case applying Oregon

law. Thus, even if the failure to move for a new trial were contrary to the holding

in Simpson, this would not make it contrary to “clearly established Federal law.”

28 U.S.C. § 2254(d)(1).

      The district court’s denial of the habeas petition is AFFIRMED.




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