                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 05 2011

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




                            FOR THE NINTH CIRCUIT



PATRICK MICHAEL KNOST,                           No. 10-15987

               Petitioner - Appellant,           D.C. No. 2:08-cv-02564-MCE

  v.
                                                 MEMORANDUM *
JOSEPH S. WARSHOLL, II, Probation
Officer,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                   Morrison C. England, District Judge, Presiding

                             Submitted April 20, 2011 **

Before:        RYMER, THOMAS, and PAEZ, Circuit Judges.

       California state probationer Patrick Michael Knost appeals from the district

court’s order denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

under 28 U.S.C. § 2253 and affirm.


          *
             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).
      Knost contends that his trial counsel was ineffective for failing to move for

acquittal at the close of the prosecutor’s case in chief. Specifically, he argues that

at that point in time, the prosecution had failed to prove beyond a reasonable doubt

that the victim was unconscious or asleep when he penetrated her, as required by

Cal. Pen. Code § 289(d). He asserts that had his counsel moved for acquittal, there

is a reasonable probability that the motion would have been granted.

      The California Court of Appeal, applying Strickland v. Washington, 466

U.S. 668 (1984), determined that there was not a reasonable probability that Knost

would have received a more favorable determination if his counsel had moved for

acquittal at the close of the prosecution’s case. Based on the record before us, this

determination was not contrary to, or an unreasonable application of, clearly

established federal law as determined by the Supreme Court, nor was it based on

an unreasonable determination of the facts in light of the evidence. See 28 U.S.C.

§ 2254(d); Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (per curiam).

      AFFIRMED.




                                           2                                     10-15987
