Arceo v. Carey

MEMORANDUM^**

California state prisoner Anthony A. Arceo appeals pro se the district court’s denial of his 28 U.S.C. § 2254 petition, challenging his conviction for kidnaping and related sex offenses. We have jurisdiction pursuant to 28 U.S.C. § 2253. We conduct an independent review of the record and relevant federal law when there is no reasoned state court opinion addressing a petitioner’s federal claims. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir.2000). Reviewing de novo, see Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we affirm.

Areeo first contends his constitutional rights were violated by judicial misconduct because the trial court (1) faded to sua sponte declare a mistrial, or admonish the jury after a prosecution witness attacked Areeo in the courtroom; and (2) instructed the jury not to feel pity for the defendant as a result of the altercation. Areeo also alleges that his due process rights were violated by prosecutorial misconduct because the prosecutor presented a case without evidence, and orchestrated the attack on Areeo by the prosecutor’s witness. These contentions lack merit.

Because Areeo fails to allege any facts arising to the level of either judicial or prosecutorial misconduct, we conclude that the state court properly denied habeas relief on these claims. Woodford v. Visciotti, — U.S. -, 123 S.Ct. 357, 360, 154 L.Ed.2d 279 (2000) (deciding that the federal habeas scheme “authorizes federal-court intervention only when a state-court decision is objectively unreasonable”), rehearing denied, — U.S. -, — S.Ct. -, — L.Ed.2d -- (2003); see also Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir.2000).

Arceo’s last contention is that he received ineffective assistance of trial and appellate counsel. Areeo alleges that his trial counsel was ineffective by (1) failing to object before and after the attack by a prosecution witness; and (2) failing to request either a mis-trial, or for admonishment of the jury regarding the attack. Areeo contends that his appellate counsel was ineffective because counsel did not raise the issue of whether he was prejudiced by the attack.

Because trial and appellate counsels’ representations were not outside the wide range of reasonable assistance, the district court properly determined that both counsels’ performances were not deficient. See Strickland v. Washington, 466 U.S. 668, 687-688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) (requiring a showing of deficient performance and resulting prejudice); Turner v. Calderon, 281 F.3d 851, 872 (9th Cir.2002) (deciding that appellate counsel was not deficient for failing to raise merit-less issues on appeal).

Therefore, Areeo has not demonstrated that the California state courts’ rejection of his habeas claims was contrary to, or involved an unreasonable application, of Supreme Court precedent. See 28 U.S.C. § 2254(d); Van Tran v. Lindsey, 212 F.3d 1143,1149 (9th Cir.2000).

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.