Oviedo v. Johnson

104 F. App'x 77

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 19, 2004
• Docket: No. 03-35842; D.C. No. CV-01-00442-REJ
• Status: Published

Opinion

MEMORANDUM

*

To prevail on his habeas corpus petition, Oviedo must demonstrate (1) that the Oregon trial court’s denial of his motion for mistrial was contrary to clearly established federal law and (2) that the Oregon post-conviction court’s denial of his ineffective assistance of counsel claims amounted to an unreasonable application of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Upon de novo review of the district court’s denial of Oviedo’s petition, see Dows v. Wood, 211 F.3d 480, 484 (9th Cir.2000), we affirm.

First, the trial court’s denial of Oviedo’s motion for mistrial was not contrary to the relevant clearly established federal law because it did not “so infuse[ ] the trial with unfairness as to deny due process of law.” Estelle v. McGuire, 502 U.S. 62, 75, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (citation omitted).

Second, Oviedo’s claim that trial counsel provided ineffective assistance by failing to object in writing to the presentence report is procedurally barred because Oviedo abandoned it in his post-conviction relief appeal to the Oregon Court of Appeals. See Peterson v. Lampert, 319 F.3d 1153, 1156 (9th Cir.2003) (en banc).

Finally, the state post-conviction court reasonably applied federal law in dismissing Oviedo’s ineffective assistance claims related to the prosecution’s closing argument because trial counsel’s decision not to object did not fall below an objective standard of reasonableness. See Strickland, 466 U.S. at 688.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.