                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 16 2010

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




                            FOR THE NINTH CIRCUIT



BRANDON SUTTON,                                  No. 08-35822

              Petitioner - Appellant,            D.C. No. 2:07-cv-01462-MJP

  v.
                                                 MEMORANDUM *
DOUG WADDINGTON,

              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 9, 2010
                               Seattle, Washington

Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.


       Washington prisoner Brandon Sutton 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 Sutton’s habeas petition.

See, e.g., Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). The Antiterrorism and

Effective Death Penalty Act (“AEDPA”) applies to this case, so 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 Sutton’s argument that the information charging him with felony

murder was constitutionally insufficient because it did not contain the elements of

the three predicate felonies. As Sutton acknowledges, no Supreme Court case has

addressed whether a felony murder charging document must state the elements of

the predicate felony, so the state court’s decision could not have been “contrary to”

clearly established federal law as determined by the Supreme Court. Nor are we

persuaded that the state court’s decision was an unreasonable application of any of

the Supreme Court cases upon which Sutton relies. See, e.g., Apprendi v. New

Jersey, 530 U.S. 466 (2000); Hamling v. United States, 418 U.S. 87 (1974); Cole v.

Arkansas, 333 U.S. 196 (1948). Sutton’s reliance on our decision in Kreck v.


                                            2
Spalding, 721 F.2d 1229 (9th Cir. 1983), also is unavailing. We cannot overturn a

state conviction on habeas review on the basis of a conflict with Ninth Circuit law,

see, e.g., Bradway v. Cate, 588 F.3d 990, 992 (9th Cir. 2009), and Kreck has no

persuasive value because it was decided before the enactment of AEDPA’s

deferential standard of review and its holding was not required by any clearly

established Supreme Court precedent.

      We also reject Sutton’s claim that he was denied a fair trial as a result of

prosecutorial misconduct during closing argument. Even if the prosecutor’s

remarks were improper, they did not render Sutton’s 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 state court’s decision was not contrary to or an unreasonable

application of either Darden or Donnelly.

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

      AFFIRMED.




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