                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              DEC 05 2014

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

KEM COTE,                                        No. 12-55844

              Petitioner - Appellant,            D.C. No. 5:07-cv-00486-DDP-
                                                 RNB
  v.

DARRYL ADAMS,                                    MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                   Dean D. Pregerson, District Judge, Presiding

                    Argued and Submitted November 18, 2014
                              Pasadena, California

Before: SCHROEDER and NGUYEN, Circuit Judges, and ZOUHARY, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Jack Zouhary, United States District Judge for the
Northern District of Ohio, sitting by designation.
      Petitioner Kem Cote appeals the district court’s denial of his 28 U.S.C.

§ 2254 habeas petition, challenging his California convictions for child sexual

abuse. He makes two principal arguments in this appeal.

      The first is that his appellate counsel was ineffective for failing to argue that

a mid-trial amendment of the information violated his due process right to notice of

the charges and the penalty he faced. While he argues that the state court’s

determination is not entitled to deference under the Anti-Terrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), the reasoned opinion of the state trial

court, affirmed by the California Supreme Court, is entitled to deference. See

Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011). The state ineffective

assistance of counsel claim did not materially differ from the federal claim, and the

state court’s reasoned disposition rejected the state claim. See Johnson v.

Williams, 133 S. Ct. 1088, 1094–99 (2013) (applying deference to a federal claim

not expressly mentioned in the state court decision, where state and federal claims

were not “quite different”). Cote has not overcome the presumption that the

federal claim was also adjudicated on the merits.

      As to the merits, the state court did not unreasonably apply the principles of

Strickland v. Washington, 466 U.S. 668 (1984), when it found that Cote did not

suffer from ineffective assistance of counsel. Cote contends appellate counsel’s


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failure to raise a due process argument based on the mid-trial amendment of the

information was deficient, but he cannot establish prejudice under any standard of

review. The effect of the amendment was to narrow the time period covered by the

charges. The amendment did not change the maximum sentencing exposure, or

charge matters not covered in the original information. Moreover, Cote has never

indicated how additional notice would have affected the manner in which his case

was presented. See Gautt v. Lewis, 489 F.3d 993, 1003–04 (9th Cir. 2007) (noting

an information is constitutionally sufficient if it states “the elements of the offense

charged with sufficient clarity to apprise a defendant of what he must be prepared

to defend against”).

       Cote’s second contention is that the state courts unreasonably determined

that a juror’s statements during deliberations did not constitute prejudicial

misconduct. The state courts found that the juror’s comment, concerning how her

experience as a court reporter bore on interpreting one of the instructions was not

misconduct, and was not prejudicial in any event. These findings were not

objectively unreasonable. See Wood v. Allen, 558 U.S. 290, 301–02 (2010) (noting

a state court finding must be unreasonable, not merely debatable, to warrant habeas

relief).

       AFFIRMED.


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