FILED
NOT FOR PUBLICATION OCT 18 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM J. WEYHRICH, No. 11-35092
Petitioner - Appellant, D.C. No. 3:04-cv-00301-JO
v.
MEMORANDUM*
MARK NOOTH,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, Senior District Judge, Presiding
Submitted October 9, 2013**
Portland, Oregon
Before: SILVERMAN, W. FLETCHER, and CALLAHAN, Circuit Judges.
William Weyhrich appeals from the district court’s denial of his habeas
petition challenging his state kidnaping and assault conviction. Weyhrich claims
that his trial counsel provided ineffective assistance of counsel (“IAC”) when he
*
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).
successfully objected to the prosecutor’s closing remarks but did not move to strike
or for a mistrial. The district court, applying the Antiterrorism and Effective Death
Penalty Act (“AEDPA”), 28 U.S.C. § 2254, deferred to the state court’s denial of
relief, noting that the prosecutor’s improper comments were relatively brief,
defense counsel’s decision not to seek further relief was reasonable, and the case
against Weyhrich was strong. Weyhrich filed a timely notice of appeal from the
district court’s final order and we affirm the denial of the petition.1
The AEDPA provides that for relief to be granted by a federal court on a
state habeas petition, the petitioner must show that the state courts’ denial of relief
was either ‘contrary to, or involved an unreasonable application of, clearly
established Federal law” or “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. §
2254(d). A petitioner seeking relief for IAC must show that his attorney’s
performance was deficient and that the deficient performance prejudiced the
defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). Furthermore, the
Supreme Court has held that where habeas relief is sought based on IAC in a state
1
Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
2
court, the petitioner must show that the state court’s application of the Strickland
standard was unreasonable. Harrington v. Richter, 131 S. Ct. 770, 785 (2011).
Weyhrich has failed to meet this burden. When the prosecutor in his closing
argument insinuated that Weyhrich was guilty because he wanted an attorney and
that the attorney would help him concoct a dishonest defense, defense counsel
immediately objected and the objection was sustained. On post-conviction review,
the Oregon state court found that defense counsel reasonably thought the jury was
not impressed by the prosecutor’s improper argument and that the failure to move
to strike or for a mistrial did not prejudice Weyhrich.
We agree. Weyhrich has not shown that his trial counsel’s failure to move
to strike the prosecutor’s comment or to move for a mistrial fell below the “wide
range of reasonable professional assistance.” Strickland, 466 U.S. at 689. While
we have held that a prosecutor’s improper remarks may deny a defendant a
fundamentally fair trial, see Bruno v. Rushen, 721 F.2d 1193 (9th Cir. 1983), in
Bruno, the improper remarks were extensive and defense counsel’s objection was
overruled. Id. at 1194 n.2. Here, the prosecutor was only able to make a single
statement with two negative implications before defense counsel objected and the
objection was sustained.
3
Weyhrich asserts that under Oregon law, failing to move for a mistrial
cannot be part of any legitimate trial strategy, citing Simpson v. Coursey, 197 P.3d
68 (Or. Ct. App. 2008). Simpson is inapposite because it concerned the improper
vouching by a government agent of the credibility of the victim and key witness.
Id. at 71-72. Moreover, Simpson is an Oregon state court case applying Oregon
law. Thus, even if the failure to move for a new trial were contrary to the holding
in Simpson, this would not make it contrary to “clearly established Federal law.”
28 U.S.C. § 2254(d)(1).
The district court’s denial of the habeas petition is AFFIRMED.
4