FILED
NOT FOR PUBLICATION MAY 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PATRICK MICHAEL KNOST, No. 10-15987
Petitioner - Appellant, D.C. No. 2:08-cv-02564-MCE
v.
MEMORANDUM *
JOSEPH S. WARSHOLL, II, Probation
Officer,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
California state probationer Patrick Michael Knost appeals from the district
court’s order denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
under 28 U.S.C. § 2253 and affirm.
*
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).
Knost contends that his trial counsel was ineffective for failing to move for
acquittal at the close of the prosecutor’s case in chief. Specifically, he argues that
at that point in time, the prosecution had failed to prove beyond a reasonable doubt
that the victim was unconscious or asleep when he penetrated her, as required by
Cal. Pen. Code § 289(d). He asserts that had his counsel moved for acquittal, there
is a reasonable probability that the motion would have been granted.
The California Court of Appeal, applying Strickland v. Washington, 466
U.S. 668 (1984), determined that there was not a reasonable probability that Knost
would have received a more favorable determination if his counsel had moved for
acquittal at the close of the prosecution’s case. Based on the record before us, this
determination was not contrary to, or an unreasonable application of, clearly
established federal law as determined by the Supreme Court, nor was it based on
an unreasonable determination of the facts in light of the evidence. See 28 U.S.C.
§ 2254(d); Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (per curiam).
AFFIRMED.
2 10-15987