                                                                                 FILED
                            NOT FOR PUBLICATION                                  APR 04 2012

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



                             FOR THE NINTH CIRCUIT


STEVEN ROBERT JAFFE,                               No. 09-15947

               Petitioner - Appellant,             D.C. No. 4:05-cv-04439-PJH

  v.
                                                   MEMORANDUM*
EDMUND G. BROWN, JR., Governor;
MATTHEW KRAMER, Warden,

               Respondents - Appellees.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                      Argued and Submitted February 13, 2012
                             San Francisco, California

Before: HUG, B. FLETCHER, and PAEZ, Circuit Judges.

       Steven Jaffe appeals the district court’s denial of his petition for writ of

habeas corpus. He claims that the admission of a police officer’s preliminary

hearing testimony at his trial violated his rights under the Confrontation Clause and

the Due Process Clause of the Fourteenth Amendment. Jaffe also claims that his


        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
state-appointed trial counsel was ineffective in violation of the Sixth Amendment

because he failed to object to the prosecutor’s misstatement of the law during the

prosecutor’s rebuttal argument at Jaffe’s trial.

       The district court rejected all of Jaffe’s claims and denied his habeas petition

in full. We have jurisdiction under 28 U.S.C. § 2253(a). We affirm in part and

reverse in part.

                                           I.

       We first address Jaffe’s Confrontation Clause claim. Jaffe argues that he did

not have an adequate opportunity to cross-examine Officer David Miller at the

preliminary hearing because Jaffe did not know at that time that Miller was under

investigation on federal charges of official corruption. Thus, Jaffe claims, the

admission of Miller’s preliminary hearing testimony at trial violated the

Confrontation Clause.

       While we are exceedingly troubled by Confrontation Clause implications

that arise from the admission of Miller’s preliminary hearing testimony at trial, we

cannot reach the merits of Jaffe’s claim on this appeal. This is because Jaffe either

has not exhausted or has procedurally defaulted on his Confrontation Clause claim

in the state courts.




                                          -2-
      The rule requiring a habeas petitioner to exhaust all state-court remedies

before seeking federal relief is codified at 28 U.S.C. § 2254(b)(1)(A). To satisfy

the exhaustion requirement, a habeas petitioner must demonstrate either (1) that he

has fairly presented his claim to the highest court with jurisdiction to consider it, or

(2) that no state remedy remains available to him. See Johnson v. Zenon, 88 F.3d

828, 829 (9th Cir. 1996).

      Jaffe did not fairly present his Confrontation Clause claim to the state courts

before raising that claim in his federal habeas corpus petition. In neither his direct

nor his collateral appeals before the state courts did Jaffe make the argument that

the state had violated his Confrontation Clause rights. We reject Jaffe’s contention

that his Confrontation Clause claim was fairly presented for exhaustion purposes

when he cited the Pennsylvania Supreme Court case Commonwealth v. Bazemore,

614 A.2d 684 (Pa. 1992), in conjunction with the argument in his state briefing that

the state had violated his due process rights under Brady v. Maryland, 373 U.S. 83

(1963). It is arguable whether Bazemore was decided on federal Confrontation

Clause grounds, and in any event citation to that case as part of a due process

argument and without mention of the word “confrontation” or anything similar

could not have alerted the state courts that Jaffe was making a confrontation

argument.


                                          -3-
      It is unclear from the record, however, whether any state remedies remain

available for Jaffe to raise his Confrontation Clause claim. The district court did

not address this issue, and the parties have not briefed it.1 Whether there remains a

procedure in California that would enable Jaffe to raise his claim is important

because if there is, the claim is unexhausted, but if there is not, the claim is likely

procedurally barred. See Jennison v. Goldsmith, 940 F.2d 1308, 1312 (9th Cir.

1991), overruled on other grounds as recognized in Swoopes v. Sublett, 196 F. 3d

1008, 1011 (9th Cir. 1999). While the district court has discretion to permit a

habeas petitioner to return to state court to present unexhausted claims, see King v.

Ryan, 564 F.3d 1133, 1140-41 (9th Cir. 2009) (outlining both the “Kelly” and the

“Rhines” procedures for curing “mixed” habeas petitions), it is required to dismiss

with prejudice a claim that is procedurally defaulted under state law. See Coleman

v. Thompson, 501 U.S. 722, 729-730 (1991). Thus, while we hold that Jaffe has

not fairly presented his Confrontation Clause claim to the state courts, we reverse

the district court’s order on this claim and remand so that the court may determine



      1
         Presumably the district court did not understand Jaffe to be raising a
Confrontation Clause claim. While we believe the confrontation issue was
sufficiently argued in the parties’ filings before the district court to preclude a
holding that Jaffe waived appellate review of the claim, we acknowledge that it is
not entirely clear from those documents that Jaffe was raising a Confrontation
Clause claim.

                                           -4-
in the first instance whether any California procedure remains available to Jaffe for

raising that claim, in which case the district court can exercise its discretion to

determine whether Jaffe’s petition should be stayed pursuant to either of the

procedures outlined in King. See King, 564 F.3d at 1140-41.

                                           II

      Apart from his Confrontation Clause claim, Jaffe’s principal argument is that

the state violated his due process rights under Brady when it failed to disclose

information about the criminal investigation of Miller before Miller testified at

Jaffe’s preliminary hearing. While there is some merit to Jaffe’s Brady argument,

existing Supreme Court case law does not clearly establish that the prosecution was

required to disclose the impeachment information about Miller before, rather than

after, Jaffe’s preliminary hearing. Thus, the California courts’ decision to uphold

Jaffe’s convictions over his Brady objection did not result from an “unreasonable

application” of clearly established Supreme Court precedent, and we are

constrained under the Antiterrorism and Effective Death Penalty Act (AEDPA) to

leave that decision undisturbed. 28 U.S.C. § 2254(d).

      We affirm the district court’s denial of Jaffe’s habeas petition as to his Brady

claims.




                                          -5-
                                          III

      Jaffe finally argues that his state-appointed trial counsel was ineffective in

violation of the Sixth Amendment because he failed to object when the prosecutor

misstated the law during his rebuttal argument. We affirm the district court’s

holding that the California courts did not unreasonably apply Strickland v.

Washington, 466 U.S. 668 (1984), in rejecting Jaffe’s ineffective assistance of

counsel claims.

      Whether to enter formal objections during a prosecutor’s closing arguments

is a strategic decision that many trial counsel approach differently. Even if Jaffe’s

counsel made a poor decision in not objecting to the prosecutor’s legal

misrepresentation, it does not fall so short of the ordinary standards of the legal

profession as to be objectively unreasonable within the meaning of Strickland.

Moreover, it does not seem likely that Jaffe was prejudiced even if his counsel’s

performance was deficient because both Jaffe’s defense counsel and the trial-court

judge instructed the jury that operability was an element of the gun-related charges

against Jaffe. It is impossible under these circumstances to say that the state

courts’ application of Strickland was unreasonable for purposes of AEDPA. See

Harrington v. Richter, 131 S. Ct. 770, 788 (2011). The district court’s rejection of

Jaffe’s ineffective assistance of counsel claim was accordingly proper.


                                          -6-
Each party shall bear its own costs.



AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                                  -7-
