                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 15 2010

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




                            FOR THE NINTH CIRCUIT



JIMMY A. LAZO,                                   No. 08-16838

               Petitioner - Appellant,           D.C. No. 5:06-cv-02732-JF

  v.

KEN CLARK, Warden
                                                 MEMORANDUM *
               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                      Jeremy Fogel, District Judge, Presiding

                        Argued and Submitted June 14, 2010
                             San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and PANNER,** District Judge.

       Jimmy A. Lazo appeals the district court’s denial of his 28 U.S.C. § 2254

petition alleging ineffective assistance of counsel and due process violations. We

affirm.


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
              The Honorable Owen M. Panner, Senior United States District Judge
for the District of Oregon, sitting by designation.
      Lazo argues his counsel rendered ineffective assistance by declaring in his

opening statement that a witness would testify when it was far from certain that the

witness would actually testify. Despite not submitting any affidavits explaining why

the potential witness failed to testify, Lazo essentially asks us to create a new rule of

law mandating that such “broken promises” are necessarily objectively unreasonable

under Strickland v. Washington, 466 U.S. 668, 687-88 (1984). However, Lazo has

not met the “heavy burden” of establishing that counsel’s promise was neither

reasonable nor sound trial strategy. See Matylinsky v. Budge, 577 F.3d 1083, 1091-

92 (9th Cir. 2009) (quoting Murtishaw v. Woodford, 255 F.3d 926, 939 (9th Cir.

2001)). Additionally, considering the overwhelming adverse evidence at trial, Lazo

cannot demonstrate prejudice resulting from the broken promise. Strickland, 466

U.S. at 695. Thus, Lazo ’s claim of ineffective assistance fails.

      Lazo also argues the prosecutor committed misconduct, violating Lazo ’s due

process rights. As our review is governed by the Antiterrorism and Effective Death

Penalty Act of 1996, we may grant Lazo ’s habeas petition only if the state court’s

decision “was contrary to, or involved an unreasonable application of, clearly

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

in light of the evidence presented in the State court proceeding.” Christian v. Frank,

595 F.3d 1076, 1080 (9th Cir. 2010) (quoting 28 U.S.C. § 2254(d)) (internal citation


                                            -2-
omitted). The state court’s conclusion that the prosecutor’s remarks simply reminded

the jury that Lazo had presented a very narrow defense was neither contrary to clearly

established federal law nor an unreasonable determination of the facts. Additionally,

Lazo has not demonstrated that any alleged misconduct “so infected the trial with

unfairness as to make the resulting conviction a denial of due process.” Darden v.

Wainwright, 477 U.S. 168, 181 (1986) (internal citation omitted).

      Finally, Lazo argues the trial court’s incorrect instruction that assault was a

lesser included offense to grand theft violated due process. However, viewed in

context, the instructions here were adequate to guide the jury’s deliberations. See

United States v. Moore, 109 F.3d 1456, 1465 (9th Cir. 1997) (en banc). The three

charges involved were simple. The jury received correct instructions on the elements

of the charges. In short, Lazo has not demonstrated a reasonable likelihood that the

jury applied the instruction in a way that violated his constitutional rights. Carriger

v. Lewis, 971 F.2d 329, 334 (9th Cir. 1992) (en banc).

      AFFIRMED.




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