FILED
NOT FOR PUBLICATION OCT 16 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN JAMES WONG, No. 11-35574
Petitioner - Appellant, D.C. No. 3:10-cv-00473-MA
v.
MEMORANDUM*
MARK NOOTH, Superintendent, Snake
River Correctional Institution,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, Senior District Judge, Presiding
Argued and Submitted October 7, 2013
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
An Oregon state jury convicted Stephen James Wong of six counts arising
out of his sexual abuse of his minor stepdaughter. Wong now appeals the district
court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
He claims his trial and appellate counsel provided ineffective assistance under
Strickland v. Washington, 466 U.S. 668 (1984). We have jurisdiction pursuant to
28 U.S.C. § 2253, and we affirm.
The state court’s rejection of Wong’s claims was not an “unreasonable
application” of Strickland. See 28 U.S.C. § 2254(d). Trial counsel was not
ineffective for not objecting to Clare Bruch’s testimony or to the State’s use of the
term “sex offender” in its examination of Bruch. Trial counsel could reasonably
have decided that Bruch was a proper lay witness, see Or. Rev. Stat. § 40.405, and
the state court reasonably found that “sex offender” referred not to Wong’s prior
conviction but to the allegations at issue at trial.
Wong’s appellate counsel could decline to raise issues he reasonably thought
would not succeed on appeal. Moormann v. Ryan, 628 F.3d 1102, 1109–10 (9th
Cir. 2010). Appellate counsel could reasonably have decided that the trial court
was not required to declare a mistrial after Rose Wong’s inadvertent reference to
Wong’s prior conviction, see State v. Montez, 789 P.2d 1352, 1372–73 (Or. 1990),
and that the jury’s alleged discussion of Wong’s prior conviction did not justify
interviewing jurors, see State v. Cheney, 16 P.3d 1164, 1170–72 (Or. Ct. App.
2000).
2
Wong’s claim of cumulative error fails because he has not shown any
individual instance of ineffective assistance. See Mancuso v. Olivarez, 292 F.3d
939, 957 (9th Cir. 2002).
Wong’s unopposed motion to file supplemental excerpts of record is
granted.
AFFIRMED.
3