                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 17 2011

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




                            FOR THE NINTH CIRCUIT



ABIMAEL NAJERA,                                  No. 09-55241

              Petitioner - Appellant,            D.C. No. 8:07-cv-00219-R-RC

  v.
                                                 MEMORANDUM *
MATTHEW CATES, Secretary of
California Department of Corrections and
Rehabilitation,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Manuel L. Real, District Judge, Presiding

                           Submitted October 13, 2011 **
                               Pasadena, California

Before: FERNANDEZ and CALLAHAN, Circuit Judges, and ERICKSON, Chief
District Judge.***



        *
             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).
        ***
             The Honorable Ralph R. Erickson, Chief District Judge for the U.S.
District Court for North Dakota, sitting by designation.
      Abimael Najera (“Najera”) was convicted of second degree murder in a

California state court for killing Victor Hernandez (“Hernandez”). He appeals

from the district court’s denial of his petition for habeas corpus. Certified for

appeal is a single issue: “whether trial counsel was ineffective under Strickland v.

Washington, 466 U.S. 668 (1984) for failing to object to the prosecutor’s multiple

misstatements of the law of voluntary manslaughter.” Najera contends that he was

prejudiced by his counsel’s failure to object to the misstatements, that this

prejudice denied him a fair trial, and that the California Court of Appeal’s method

of determining prejudice was contrary to Strickland’s standard for evaluating

ineffective assistance of counsel claims under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”). We do not find his arguments persuasive.1

      Under AEDPA, Najera’s petition may only be granted if the state court’s

adjudication of his claim (1) resulted in a decision that was contrary to, or involved

an unreasonable application of Strickland; 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.” 28 U.S.C. § 2254(d); see also Lockyer v.

Andrade, 538 U.S. 63, 70 (2003).



      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
      Here, the Court of Appeal’s application of Strickland was not unreasonable.

First, the court’s factual determination that Najera was not entitled to the voluntary

manslaughter instructions was reasonable. Our review is limited to whether the

Court of Appeal’s decision was unreasonable, not whether there was some support

for Najera’s argument. Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

Reasonable minds could conclude that the passage of time between Najera’s

argument with Hernandez and Najera’s assault on Hernandez precluded giving a

sudden passion or heat of passion instruction.

      Second, any harm from the Court of Appeal’s decision that Najera was not

entitled to voluntary manslaughter instructions is dissipated by the facts that the

jury was given, and appears to have understood, the voluntary manslaughter

instructions, including instructions for heat of passion and sudden quarrel. The

jury’s appreciation of the instructions is demonstrated by its inquiry during

deliberations as to whether the reasonable person standard applied to the

provocation, or to the defendant’s conduct in response to the provocation.

      Finally, Najera’s arguments concerning counsel’s failure to object to the

prosecutor’s misstatements are not persuasive because, (a) the jury was given the

correct instructions, (b) the jury was instructed that counsel’s arguments are not

evidence, and (c) the jury’s inquiry during deliberations as to the application of the


                                           3
reasonable person standard demonstrates that the jury was not misled by the

alleged misstatements.

      Because Najera has not shown that the California Court of Appeal erred in

concluding that he was not prejudiced by his counsel’s failure to object to the

prosecutor’s misstatements under Strickland, 466 U.S. at 687, Najera is not entitled

to relief under AEDPA. See 28 U.S.C. § 2254(d); see also Andrade, 538 U.S. at

70; Richter, 131 S. Ct. at 786-87.

AFFIRMED.




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