FILED
NOT FOR PUBLICATION OCT 17 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROY DARYL WILKERSON, No. 10-35573
Petitioner - Appellant, D.C. No. 3:07-cv-00869-BR
v.
MEMORANDUM *
SHARON BLACKETTER,
Superintendent, Eastern Oregon
Correctional Institution,
Respondent - Appellee.
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted October 11, 2011
Portland, Oregon
Before: BERZON and N.R. SMITH, Circuit Judges, and SMITH, District Judge.**
Roy Daryl Wilkerson, an Oregon state prisoner, appeals the district court’s
denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William E. Smith, District Judge for the U.S. District
Court for the District of Rhode Island, sitting by designation.
conviction for one count of assault in the first degree and two counts of assault in
the second degree. Wilkerson seeks relief, alleging trial counsel rendered
ineffective assistance of counsel when he failed to object to certain remarks made
by the prosecutor during closing argument. We review de novo the district court’s
denial of a state prisoner’s habeas petition, Parle v. Runnels, 505 F.3d 922, 926
(9th Cir. 2007), and we affirm.
1. Remarks applicable to Wilkerson’s self-defense claim.
The Oregon state court’s denial of Wilkerson’s Strickland claim was not
contrary to, or an unreasonable application of, Supreme Court precedent with
regard to trial counsel’s failure to object to the prosecutor’s closing statements
relating to the location of Wilkerson’s t-shirt. See 28 U.S.C. § 2254(d) (a federal
court may not grant habeas relief unless it concludes that the state court’s
adjudication of the claims “(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”).
Under Strickland v. Washington, Wilkerson must allege both (1) “that
counsel’s representation fell below an objective standard of reasonableness,” 466
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U.S. 668, 688 (1984); and (2) “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Id. at 694. The Umatilla Circuit Court found that, while the
prosecutor’s statements were improper, trial counsel’s failure to object was a trial
tactic not inadequate representation. Accepting the Umatilla Circuit Court’s
finding, Wilkerson failed to provide any evidence to support his claim that his
counsel’s failure to object to the prosecutor’s closing argument was objectively
unreasonable. As the Supreme Court suggested in Harrington v. Richter, “[t]here
is a ‘strong presumption’ that counsel’s attention to certain issues to the exclusion
of others reflects trial tactics rather than ‘sheer neglect.’” 131 S. Ct. 770, 790
(2011).
Even if trial counsel’s failure to object was objectively unreasonable,
Wilkerson cannot show that “but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” See Strickland, 466 U.S. at 694. The
trial court cured any error by its reading of the jury instructions. See United States
v. McKoy, 771 F.2d 1207, 1213 (9th Cir. 1985). The jury was properly instructed
that the prosecution had the burden of proving Wilkerson’s guilt beyond a
reasonable doubt. That burden specifically included Wilkerson’s self-defense
claim. Thus, the state court’s determination that trial counsel did not provide
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inadequate representation was neither contrary to, nor an unreasonable application
of, clearly established law.
2. Remarks regarding who was the aggressor.
Assuming exhaustion of this claim, Wilkerson failed to provide any
evidence to support his claim that the prosecutor’s statements were improper or a
mischaracterization of the facts, as there was conflicting testimony regarding who
was the aggressor. Even if the statement were improper, Wilkerson failed to meet
the Strickland test. There is no support for the argument that trial counsel’s failure
to object to the prosecutor’s closing argument was ineffective assistance. Lastly,
any failure to object was rendered harmless by the trial court’s instructions to the
jury that the attorneys’ statements and arguments are not evidence. McKoy, 771
F.2d at 1213.
AFFIRMED.
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