FILED
NOT FOR PUBLICATION JUL 01 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MANSOUR HEIDARI, No. 08-35870
Petitioner - Appellant, D.C. No. 2:07-cv-02016-MJP
v.
MEMORANDUM *
DAN PACHOLKE,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted June 10, 2010
Seattle, Washington
Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.
Washington prisoner Mansour Heidari appeals the district court’s denial of
his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review de novo the district court’s denial of Heidari’s habeas petition.
See, e.g., Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). We may grant relief
only if “the state court adjudication of the merits of a claim ‘(1) resulted in a
decision that was contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court proceeding.’” Id. (quoting
28 U.S.C. § 2254(d)).
We reject Heidari’s claim that an improper remark by the prosecutor during
closing argument deprived him of a fair trial. Even if the prosecutor committed
misconduct, the prosecutor’s remark did not render Heidari’s entire trial so unfair
that he was denied due process under the standards set forth in Darden v.
Wainwright, 477 U.S. 168, 178-83 (1986), and Donnelly v. DeChristoforo, 416
U.S. 637, 643-45 (1974). The challenged remark was “but one moment in an
extended trial,” Donnelly, 416 U.S. at 645, and did not amount to “the introduction
of specific misleading evidence,” id. at 647, as was the case in Giglio v. United
States, 405 U.S. 150 (1972). And, as in Darden, 477 U.S. at 182, the jury in
Heidari’s case was instructed that the arguments of counsel were not evidence.
Thus, in light of these factors, although the evidence against Heidari was not
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necessarily as strong as the evidence against the petitioner in Darden, see id., the
state court’s decision was not contrary to or an unreasonable application of
applicable Supreme Court precedent.
We also reject Heidari’s claim that he was denied effective assistance of
counsel because of his trial counsel’s failure to object to the challenged remark.
Even if Heidari could rebut the “strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance,” Strickland v.
Washington, 466 U.S. 668, 689 (1984), the Washington Supreme Court’s
conclusion that Heidari has not shown prejudice is not contrary to or an
unreasonable application of federal law. The prejudice to be proven “requires
showing that counsel’s errors were so serious as to deprive the defendant of a fair
trial.” Id. at 687. Because the prosecutor’s remark did not itself deprive Heidari of
a fair trial, his counsel’s failure to object to that remark did not deprive Heidari of a
fair trial.
The district court’s denial of Heidari’s habeas petition is
AFFIRMED.
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