NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT AUG 21 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ARON EZRA WESSEL, No. 12-15784
Petitioner - Appellant, D.C. No. 2:09-cv-02720-JFM
v.
MEMORANDUM*
R. BARNES, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John F. Moulds, Magistrate Judge, Presiding
Submitted August 14, 2014**
San Francisco, California
Before: TASHIMA, McKEOWN, and CLIFTON, Circuit Judges.
Aron Wessel appeals the district court’s denial of his 28 U.S.C. § 2254
habeas corpus petition challenging his jury convictions stemming from the
*
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).
shooting of his sister’s ex-boyfriend. We have jurisdiction under 28 U.S.C.
§ 2253, and we affirm.
The California Court of Appeal’s decision rejecting Wessel’s prosecutorial
misconduct claim was not “contrary to” clearly established federal law. Contrary
to Wessel’s contention, the Court of Appeal’s decision did not “appl[y] a rule that
contradicts the governing law set forth in Supreme Court cases,” or “confront[] a
set of facts materially indistinguishable from those at issue in a decision of the
Supreme Court and, nevertheless, arrive[] at a result different from [the Court’s]
precedent.” Moses v. Payne, 555 F.3d 742, 751 (9th Cir. 2009) (amended opinion)
(internal quotation marks omitted). Although the Court of Appeal may have
arguably misstated the prosecutorial misconduct standard articulated in Darden v.
Wainwright, 477 U.S. 168 (1986), neither the reasoning nor the result of the Court
of Appeal’s decision contradicts Supreme Court precedent because the state court
did not, in fact, require a “pattern” of “intemperate behavior.” The Court of
Appeal’s rejection of Wessel’s prosecutorial misconduct claim did not hinge on
any of the linguistic variations identified by Wessel. Instead, it rested on Wessel’s
failure to show that the alleged misconduct resulted in prejudice. Therefore,
Wessel is not entitled to habeas relief on his prosecutorial misconduct claim. See
Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam) (state court’s decision not
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contrary to clearly established federal law “so long as neither the reasoning nor the
result of the state-court decision contradicts” controlling Supreme Court precedent
(emphasis added)).
Equally unavailing is Wessel’s related ineffective assistance of counsel
claim based on his trial counsel’s failure to object to the prosecutor’s purported
misconduct. The Court of Appeal’s denial of this claim did not involve an
“unreasonable application” of Strickland v. Washington, 466 U.S. 668 (1984). The
Court of Appeal reasonably determined that trial counsel’s failure to object was not
prejudicial because Wessel failed to show “a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. Habeas relief is foreclosed on Wessel’s ineffective
assistance claim because “‘fairminded jurists could disagree’ on the correctness of
the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).
AFFIRMED.
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