Cheney v. Washington

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES ROBERT JOSEPH CHENEY, 

Petitioner-Appellant,

No. 08-35204

v.

MICHAEL WASHINGTON, Chairman,  D.C. No.

05-CV-01826-TC

Oregon Board of Parole and Post

OPINION

Prison Supervision,

Respondent-Appellee.



Appeal from the United States District Court

for the District of Oregon

Michael R. Hogan, District Judge, Presiding

Argued and Submitted

May 3, 2010—Portland, Oregon

Filed August 2, 2010

Before: Andrew J. Kleinfeld, Carlos T. Bea and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

11117

11120 CHENEY v. WASHINGTON

COUNSEL

Kendra M. Matthews, Ransom Blackman LLP, Portland, Ore-

gon, for petitioner-appellant James Robert Joseph Cheney.

Carolyn Alexander, Assistant Attorney General, Salem, Ore-

gon, for respondent-appellee Michael Washington.

OPINION

IKUTA, Circuit Judge:

James Cheney claims he was deprived of his Sixth Amend-

ment right to effective assistance of counsel because his

defense counsel failed to object properly at two points during

his trial. This appeal raises the question whether the state

court’s decision rejecting this claim was objectively unreason-

able. Applying “the doubly deferential judicial review that

applies to a Strickland claim evaluated under the [28 U.S.C.]

§ 2254(d)(1) standard,” Knowles v. Mirzayance, 129 S. Ct.

1411, 1420 (2009), we hold that the state court’s decision was

not contrary to or an unreasonable application of Strickland v.

Washington, 466 U.S. 668 (1984).

I

One day in January 1998, Cheney visited the home shared

by his friends Tina Deitz and Deitz’s boyfriend, Tony Martin.

Deitz’s nine-year-old daughter, T.D., and twelve-year-old son

were home alone, because their school had been cancelled due

to snow. Cheney testified that, once at the house, he carried

T.D. into her bedroom to retrieve his hat, which T.D. had hid-

den during one of Cheney’s previous visits. T.D.’s brother

reported observing, through a crack in the door connecting the

bedroom to a bathroom, Cheney rubbing T.D.’s chest and

attempting to put his tongue inside her mouth, while T.D. lay

CHENEY v. WASHINGTON 11121

frozen on her bed with “an extremely scared look on her

face.” T.D.’s brother immediately called his grandparents,

who removed the children from the house and contacted

Deitz. Deitz instructed Cheney to leave the house, which he

did. Deitz also contacted law enforcement, who sent Detective

Dwayne Troxel and a case worker from the State Office for

Services to Children and Families (“SCF”) to interview the

children that evening.

Based on this incident and two others reported by T.D.,

Cheney was charged with four counts of first-degree sexual

abuse. In the government’s case-in-chief, T.D. testified about

three instances in which Cheney had touched her sexually.

First, T.D. stated that Cheney had held her on his lap and

rubbed her vaginal area underneath her underpants while on

a camping trip. Second, T.D. reported that Cheney touched

her “private” while alone in a room in her house. The third

incident was the one witnessed by her brother on the snow

day. The government also presented T.D.’s videotaped inter-

view with the SCF case worker, which related information

similar to T.D.’s trial testimony. In addition, T.D.’s brother

testified to what he had seen through the crack in the door.

The balance of the government’s case consisted of witnesses

intended to bolster T.D. and her brother’s credibility or

impeach Cheney’s.

The defense denied the abuse allegations. Cheney testified

that he and T.D. would play a “kissing game,” where T.D.

would tease Cheney by threatening to kiss him and by making

kissing noises, but denied that there was ever any sexual pur-

pose behind these contacts. Cheney admitted that, on the

snow day, after T.D. had given him “a little peck on the lips,”

he had tickled her and given her a blubbery kiss while she laid

on her bed, but maintained that this was merely an act of

horseplay.

The defense’s theory at trial was that the investigation into

the sexual abuse allegations was biased, and that investigators

11122 CHENEY v. WASHINGTON

wrongly assumed Cheney was guilty from the outset and

manipulated the evidence to confirm this belief. The defense

challenged T.D.’s credibility through experts who testified

that children are susceptible to suggestion when interviewed

by police. The defense also called Detective Troxel to testify

regarding his work with the Hood River Interagency Child

Abuse Protection Team. The defense’s questioning suggested

that Troxel’s Child Abuse Protection Team had an institu-

tional bias toward establishing guilt, as shown by the agency’s

published credo, which stated that “the role of the Hood River

County Sheriff’s Department is the securing of evidence to

issue criminal charges and to obtain a conviction.”

In response, the prosecutor engaged in the following line of

cross-examination:

[Prosecutor]: Detective Troxel, you investi-

gate sexual abuse cases on a

regular basis as part of your

job?

[Troxel]: Unfortunately too regular.

[Prosecutor]: Okay. And sometimes reports

turn out not to be true, or

unfounded, don’t they?

[Troxel]: Yes, they do.

[Prosecutor]: Sometimes no one’s ever

charged with any crimes; isn’t

that true?

[Troxel]: That’s very true.

[Prosecutor]: So you wouldn’t, in that case,

choose to prosecute or recom-

CHENEY v. WASHINGTON 11123

mend prosecution of a case,

would you?

[Troxel]: If, based on the information I

received, I believed that no

crime had been committed, I

would not — I would write up

my findings and send it to the

D.A.’s office, but not recom-

mend prosecution, no.

Cheney’s defense counsel did not object to this questioning.

In closing argument, defense counsel argued that the police

and prosecutor’s efforts to convict Cheney were motivated by

ego, stating:

The State is desperate to get a conviction. This is a

big deal. Resources are put into this and, frankly,

there’s egos too. The State is trying to twist Mr.

Cheney’s statements to people to make you think it’s

some kind of confession.

....

[T]he evidence is weak, because the children them-

selves have said in their statements, consistently,

when they give narratives, that the first—the first

time they talk about it, that there was no touching,

and the only reason rubbing and private parts come

into it is because the police are collecting evidence

of a crime so they can obtain a conviction.

And once the district attorney gets involved, there’s

—there’s, you know, there’s no stopping it. The—

the freight train is on the tracks and it’s going down

the road and the kids are on board and they know

11124 CHENEY v. WASHINGTON

that everyone’s relying upon them. This is a really

big show.

In rebuttal, the prosecutor responded with the following:

[Defense counsel] talked about my ego being at

stake and the fact that we always want convictions

no matter what, and that is simply untrue. Let me tell

you about what—what my job is.

My job as a prosecutor—and I’ve been a defense

attorney. I’ve been where [defense counsel] is sitting

right now. And the role I have now is very different,

and I am different. I cannot just advocate for what-

ever my client tells me to say. And whether it’s true

or not, I cannot get up here and say that. My job, by

law, is I—I can only advocate for cases where I

believe that it’s true, where I believe that it hap-

pened. If I think it’s a close case, if I think it’s a case

I could win, and I still don’t feel good about it, I’m

required by law not to go through with it. That’s a

very different job than [defense counsel] has. Very

different.

And what is the job of the police in this particular

case? What did they tell you? There are many cases

where we do not recommend prosecution. There are

many cases that we find unfounded and we don’t go

ahead with those. And it is only on true cases that we

are required to recommend prosecution. And that

was the testimony of Dwayne Troxel.

After the prosecutor concluded her rebuttal and the court

had begun to instruct the jury, defense counsel moved for a

mistrial outside the jury’s presence, arguing that the prosecu-

tor’s remarks impermissibly vouched for T.D.’s credibility.

The trial court agreed that the prosecutor’s statements were

improper, but nevertheless denied the motion for a mistrial.

CHENEY v. WASHINGTON 11125

Instead, the trial court offered to give a curative instruction,

which defense counsel accepted. The trial court subsequently

instructed the jury:

The attorneys’ statements and arguments are not evi-

dence. If your recollection of the evidence is differ-

ent from the attorneys’ recollection, you must rely

on your own memory. Personal beliefs asserted by

either counsel in closing arguments as to the truth or

falsity of facts is not to be considered by you. You

are the sole judges of the facts.

By a vote of 10 to 2, the jury found Cheney guilty on all

four counts of first-degree sexual abuse.1 After the verdict, but

before sentencing, Cheney and the government entered into

an agreement in which Cheney agreed not to seek a new trial

and to admit guilt in open court in return for receiving concur-

rent, rather than consecutive, sentences of seventy-five

months. The trial court imposed that sentence and also

imposed a ten-year term of post-prison supervision. Cheney

was released from prison on March 8, 2005, and is currently

serving the balance of his ten-year term of post-prison super-

vision.

II

On appeal in state court, Cheney asserted (among other

claims) that the trial court should have granted his motion for

a mistrial, or directed one sua sponte, because the prosecu-

tor’s statements in closing argument improperly suggested a

personal belief in his guilt.

The Oregon Court of Appeals rejected these claims, and

affirmed Cheney’s conviction. The Oregon Supreme Court

denied review.

1

Under Oregon law, except in cases involving murder or aggravated

murder, “the verdict of a trial jury in a criminal action shall be by concur-

rence of at least 10 of 12 jurors.” Or. Rev. Stat. § 136.450.

11126 CHENEY v. WASHINGTON

Cheney next challenged his conviction in state post-

conviction proceedings. Instead of claiming prosecutorial

misconduct as on direct appeal, Cheney’s post-conviction

petition asserted ineffective assistance of counsel. Relevant

here, Cheney argued that defense counsel failed to meet the

minimum constitutional standard of effective assistance by (1)

failing to object when the prosecutor elicited testimony from

Detective Troxel that the police recommend prosecution only

in cases where they believe a crime has been committed, and

(2) failing to make a timely objection when the prosecutor

vouched for the complainant’s credibility during closing argu-

ment.2

The Oregon post-conviction court denied Cheney’s peti-

tion, concluding that Cheney “was not denied the right to

assistance of counsel, as guaranteed by . . . the United States

Constitution and as articulated by the United States Supreme

Court in Strickland v. Washington, 466 U.S. 668 (1984).”

With respect to defense counsel’s failure to object to the col-

loquy between the prosecutor and Detective Troxel on cross-

examination, the state court held that Cheney had “failed to

prove that trial counsel’s failure to object to the admission of

certain evidence fell below the constitutional standard for

effective assistance of counsel.” As for defense counsel’s fail-

ure to make a timely objection to the prosecutor’s improper

closing remarks, the state court determined that, while the

prosecutor’s statements “caused . . . concern, . . . [they] did

not affect the outcome of the trial or deny petitioner a fair

trial.” The Oregon Court of Appeals affirmed the denial of

Cheney’s petition without opinion, and the Oregon Supreme

Court declined further review.

2

Throughout state post-conviction proceedings and in his federal habeas

petition before the district court, Cheney argued as an additional ground

for relief that his attorney was ineffective in failing to make a timely

motion for a mistrial in response to these two incidents of alleged prosecu-

torial misconduct. Because Cheney does not raise these issues in this

appeal, we do not consider them in our decision here.

CHENEY v. WASHINGTON 11127

Cheney filed an application for federal habeas relief under

28 U.S.C. § 2254, which repeated the same arguments from

his state post-conviction petition. The district court denied

Cheney’s application, rejecting the magistrate judge’s recom-

mendation to grant the writ based on defense counsel’s failure

to make a timely objection to the prosecutor’s remarks at clos-

ing argument. The district court held that the state court’s

conclusion that defense counsel’s allegedly deficient repre-

sentation was not prejudicial did not constitute an unreason-

able application of Strickland. Cheney timely filed a notice of

appeal.

III

“We review de novo the district court’s decision to grant or

deny a petition for a writ of habeas corpus.” Moses v. Payne,

555 F.3d 742, 750 (9th Cir. 2009) (alteration and internal quo-

tation marks omitted).

[1] Because Cheney filed his federal habeas petition after

April 24, 1996, his petition is governed by the Antiterrorism

and Effective Death Penalty Act of 1996 (“AEDPA”), 28

U.S.C. § 2254. Woodford v. Garceau, 538 U.S. 202, 204

(2003); Lambert v. Blodgett, 393 F.3d 943, 965 (9th Cir.

2004). Under § 2254(d)(1), a federal court must deny habeas

relief with respect to any claim adjudicated on the merits in

a state court proceeding unless the proceeding “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.” The phrase

“clearly established Federal law, as determined by the

Supreme Court of the United States” refers to “the holdings,

as opposed to the dicta,” of the Supreme Court’s decisions “as

of the time of the relevant state-court decision.” Williams v.

Taylor, 529 U.S. 362, 412 (2000).

[2] Cheney does not argue that the relevant state court

decision was “contrary to” any clearly established Supreme

11128 CHENEY v. WASHINGTON

Court holding.3 Rather, Cheney’s argument centers on the

“unreasonable application” clause of § 2254(d)(1). “The

‘unreasonable application’ clause requires the state court deci-

sion to be more than incorrect or erroneous.” Lockyer v.

Andrade, 538 U.S. 63, 75 (2003). Indeed, the Supreme Court

has repeatedly instructed that “a federal habeas court may not

issue the writ simply because [it] concludes in its independent

judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly.” Renico v.

Lett, 130 S. Ct. 1855, 1862 (2010) (internal quotation marks

omitted); e.g., Waddington v. Sarausad, 129 S. Ct. 823, 831

(2009); Middleton v. McNeil, 541 U.S. 433, 436 (2004) (per

curiam); Rice v. Collins, 546 U.S. 333, 341-42 (2006). Rather,

for the federal court to issue the writ, the state court’s applica-

tion of Supreme Court precedent must be “objectively unrea-

sonable.” Renico, 130 S. Ct. at 1862 (internal quotation marks

omitted). This is a “highly deferential standard for evaluating

state-court rulings, and demands that state-court decisions be

given the benefit of the doubt.” Id. (internal quotation marks

and citations omitted).

[3] When a habeas petitioner asks a federal court to review

a state court’s application of the Strickland standard under

§ 2254(d)(1), we must give state courts “even more latitude

[than is typical under AEDPA] to reasonably determine that

a defendant has not satisfied” the Strickland standard.

Knowles, 129 S. Ct. at 1420. This heightened deference stems

from the nature of Strickland’s two-prong standard for evalu-

3

This claim, had it been raised, would have failed. A state court’s deci-

sion is “contrary to” clearly established Supreme Court holdings only if

it “applies a rule that contradicts the governing law set forth” in Supreme

Court cases, Williams, 529 U.S. at 405, or “if the state court confronts a

set of facts that are materially indistinguishable from a decision of [the

Supreme Court] and nevertheless arrives at a result different from [that

Supreme Court] precedent,” id. at 406. In this case, the state court cor-

rectly identified Strickland as the controlling legal standard, and there is

no Supreme Court decision considering facts that are “materially indistin-

guishable” from those of this case.

CHENEY v. WASHINGTON 11129

ating ineffective assistance of counsel claims. Id.; see Yarbor-

ough v. Gentry, 540 U.S. 1, 6 (2003) (per curiam).

Under Strickland’s first prong, a defendant must prove that

counsel’s performance was “deficient.” Knowles, 129 S. Ct.

at 1419. Counsel’s performance will be held constitutionally

deficient only if the defendant proves that it “fell below an

objective standard of reasonableness,” as measured by “pre-

vailing professional norms.” Strickland, 466 U.S. at 688. In

reviewing counsel’s performance for deficiency, courts “must

be highly deferential” and avoid the temptation to “conclude

that a particular act or omission of counsel was unreasonable”

simply because in hindsight the defense has proven to be

unsuccessful. Id. at 689. Courts are required to “indulge a

strong presumption that counsel’s conduct falls within the

wide range of reasonable professional assistance.” Id. The

defendant bears the burden of overcoming the strong pre-

sumption that counsel performed adequately. Id.

Even if the defendant succeeds in showing that counsel’s

performance was deficient, the second prong of the Strickland

test requires the defendant to prove that counsel’s deficiencies

were prejudicial to the defense. Id. at 692. To establish preju-

dice, the defendant “must show 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. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. “It is not enough

for the defendant to show that the errors had some conceiv-

able effect on the outcome of the proceeding.” Id. at 693. As

with deficiency, Strickland places the burden of proving prej-

udice on the defendant, not the government. Wong v. Bel-

montes, 130 S. Ct. 383, 390-91 (2009).

The Supreme Court has provided two reasons why the fed-

eral court must apply a “doubly deferential” judicial review to

a state court’s application of the Strickland standard under

AEDPA. Gentry, 540 U.S. at 5-6. First, as noted above, Str-

11130 CHENEY v. WASHINGTON

ickland instructs courts to review a defense counsel’s effec-

tiveness with great deference, Strickland, 466 U.S. at 689, and

AEDPA requires federal courts to defer to the state court’s

decision unless its application of Supreme Court precedent

was objectively unreasonable, Renico, 130 S. Ct. at 1862.

When a federal court reviews a state court’s Strickland deter-

mination under AEDPA, both AEDPA and Strickland’s defer-

ential standards apply; hence, the Supreme Court’s

description of the standard as “doubly deferential.” Gentry,

540 U.S. at 6.

[4] Second, our review is “doubly deferential” because Str-

ickland provides courts with a general standard, rather than a

specific legal rule. Knowles, 129 S. Ct. at 1420; see also

Bobby v. Van Hook, 130 S. Ct. 13, 16 (2009) (per curiam)

(holding that Strickland necessarily established a general stan-

dard because “[n]o particular set of detailed rules for coun-

sel’s conduct can satisfactorily take account of the variety of

circumstances faced by defense counsel or the range of legiti-

mate decisions regarding how best to represent a criminal

defendant” (internal quotation marks omitted)). Because judi-

cial application of a general standard “can demand a substan-

tial element of judgment,” the more general the rule provided

by the Supreme Court, the more latitude the state courts have

in reaching reasonable outcomes in case-by-case determina-

tions. Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). In

turn, the state courts’ greater leeway in reasonably applying

a general rule translates to a narrower range of decisions that

are objectively unreasonable under AEDPA. See id. Accord-

ingly, we review a state court’s decision applying Strickland’s

general principles with increased, or double, deference. See

Knowles, 129 S. Ct. at 1420.

When applying this heightened deferential standard, we

review the “last reasoned decision” by the state court address-

ing the petitioner’s claim. Robinson v. Ignacio, 360 F.3d

1044, 1055 (9th Cir. 2004). Here, the last reasoned decision

CHENEY v. WASHINGTON 11131

addressing Cheney’s ineffective assistance of counsel claim is

that of the Oregon trial court on state post-conviction review.

IV

Cheney asserts that the state court was objectively unrea-

sonable in denying him relief under Strickland because, even

under our doubly deferential standard of review, his counsel’s

errors at trial were both deficient and prejudicial. As in his

state post-conviction petition, Cheney points to two omissions

of his counsel: his counsel’s failure to object to the colloquy

between the prosecutor and Detective Troxel on cross-

examination, and his counsel’s failure to make a timely objec-

tion to the prosecutor’s vouching remarks during closing argu-

ment.4 We consider each of Cheney’s arguments in turn.

A

We begin by reviewing the state court’s ruling that defense

counsel’s failure to object to Troxel’s testimony was not defi-

cient because it did not “f[a]ll below the constitutional stan-

dard for effective assistance of counsel.” We hold that the

state court was not objectively unreasonable in reaching this

conclusion.

4

In his federal habeas application, Cheney petitioned for habeas relief

on ineffective assistance of counsel grounds, but the district court marked

on a preprinted checklist that it was granting a certificate of appealability

(COA) for “prosecutorial misconduct.” The parties agree that this COA

was intended to cover Cheney’s claims of ineffective assistance due to

defense counsel’s response to the prosecutor’s alleged misconduct during

closing argument, but dispute whether the COA extends to counsel’s

response to the colloquy between the prosecutor and Detective Troxel.

Because prosecutorial misconduct may occur through the prosecutor’s

own vouching remarks or when the prosecutor elicits vouching testimony

from witnesses, see United States v. Rudberg, 122 F.3d 1199, 1204 (9th

Cir. 1997), we analyze Cheney’s ineffective assistance of counsel claim

with respect to both incidents.

11132 CHENEY v. WASHINGTON

[5] The state court could have reasonably concluded that

defense counsel had a strategic reason for remaining silent

during the prosecutor’s questioning. Under Strickland, the

court must indulge “a strong presumption that [counsel acted]

for tactical reasons rather than through sheer neglect.” Gentry,

540 U.S. at 8 (citing Strickland, 466 U.S. at 690). This pre-

sumption takes on particular force where, as here, “a peti-

tioner bases his ineffective-assistance claim solely on the trial

record, creating a situation in which a court may have no way

of knowing whether a seemingly unusual or misguided action

by counsel had a sound strategic motive.” Id. at 6. The gov-

ernment argues that defense counsel could have decided not

to object to Troxel’s testimony because it led Troxel to admit

not only that abuse allegations are sometimes baseless, but

that his personal views were sometimes a determinative factor

in the decision whether to prosecute. Such testimony would

advance the defense’s theory that the police were motivated

by both personal and systemic bias. In light of Strickland’s

presumption, we cannot say that it would be objectively

unreasonable for the state court to “deem counsel’s choice . . .

a tactical decision about which competent lawyers might dis-

agree,” Bell v. Cone, 535 U.S. 685, 702 (2002). Because the

state court’s denial of this claim was not objectively unrea-

sonable, there is no basis under AEDPA to reverse it here.

B

We next turn to Cheney’s claim that the state court was

objectively unreasonable in concluding that he was not preju-

diced by his counsel’s failure to make a timely objection to

the improper remarks in the prosecutor’s closing statement.

Cheney theorizes that if his counsel had interrupted the

prosecutor immediately after the first improper statement, the

court would have prevented the prosecutor from making any

further damaging comments and would have immediately

directed the jury to disregard the statement. Defense counsel’s

failure to stop the prosecutor from making such remarks was

CHENEY v. WASHINGTON 11133

prejudicial because, according to Cheney, the case was a close

one: the prosecutor admitted during a plea discussion that the

government had only a “50-50” chance of prevailing, and two

jurors out of twelve voted to acquit. Neither the prosecution

nor the defense had overwhelming evidence in its favor,

Cheney contends, so the case hinged on whom the jury

believed, T.D. or Cheney. Because the prosecutor’s remarks

impermissibly placed the weight and prestige of the govern-

ment behind T.D.’s version of events, Cheney argues that they

tipped the balance in favor of conviction. Accordingly,

Cheney claims that, but for defense counsel’s failure to shield

the jury from this impropriety, the “result of the proceeding

would have been different,” Strickland, 466 U.S. at 694.

[6] This argument fails because, when considered in con-

text, the state court could reasonably conclude that there was

no reasonable probability of a different outcome had defense

counsel made an immediate objection to the prosecutor’s

imprudent remarks. Cheney’s counsel brought the prosecu-

tor’s impropriety to the court’s attention with only a slight

delay, and the court provided a curative instruction advising

the jurors that “[p]ersonal beliefs asserted by either counsel in

closing arguments as to the truth or falsity of facts is not to

be considered” in judging the facts. Jurors are presumed to

follow the court’s instructions. Richardson v. Marsh, 481 U.S.

200, 211 (1987); see also Strickland, 466 U.S. at 694 (“[A]

court should presume, absent challenge to the judgment on

grounds of evidentiary insufficiency, that the . . . jury acted

according to the law.”). Further, it is well established that “ar-

guments of counsel generally carry less weight with a jury

than do instructions from the court.” Boyde v. California, 494

U.S. 370, 384 (1990). In view of the presumption that the jury

properly disregarded the prosecutor’s statements in accor-

dance with the curative instruction, it was reasonable for the

state court to conclude that the prosecutor’s remarks, and

counsel’s failure to prevent those remarks, were not prejudi-

cial. Cf. Darden v. Wainwright, 477 U.S. 168, 182 (1986)

(holding under the Due Process Clause that a defendant was

11134 CHENEY v. WASHINGTON

not prejudiced by a prosecutor’s improper statements in clos-

ing argument, in part because “[t]he trial court instructed the

jurors several times that their decision was to be made on the

basis of the evidence alone, and that the arguments of counsel

were not evidence”).

[7] Moreover, we must take into account that the offending

remarks in question were in response to defense counsel’s

closing statements that the government was twisting the evi-

dence to secure a conviction and protect its ego. Viewed in

this light, the jury may have understood the remarks as invited

by the defense’s provocations and therefore discounted them

or accorded them less significance, which further weighs

against the holding of prejudice here. Cf. id. at 182 (citing

United States v. Young, 470 U.S. 1, 13 (1985)) (using the doc-

trine of “invited response” to determine what effect a prosecu-

tor’s improper statements had “on the trial as a whole”).

[8] Because the state court could have reasonably con-

cluded that any delay in objecting to the prosecutor’s impru-

dent statements did not “undermine confidence in the

outcome” of the trial, Strickland, 466 U.S. at 695, we uphold

the state court’s decision to deny Cheney’s claim.5

V

Applying “doubly deferential judicial review” to Cheney’s

claim, Knowles, 129 S. Ct. at 1420, we hold that Cheney has

failed to show that the state court’s decision “was contrary to,

5

Cheney also claims he was prejudiced by his counsel’s failure to argue

for a curative instruction that specifically referenced the prosecutor’s

improprieties in closing argument. The parties dispute whether this claim

was properly exhausted. Without reaching the exhaustion issue, this claim

fails on the merits. See 28 U.S.C. § 2254(b)(2). Because the state court

could reasonably conclude that the curative instruction given by the court

was sufficient to negate any prejudice resulting from the prosecutor’s

comments, it follows that Cheney was not prejudiced by his counsel’s fail-

ure to request a more specific instruction.

CHENEY v. WASHINGTON 11135

or involved an unreasonable application of, clearly established

Federal law as determined by the Supreme Court” under

§ 2254(d)(1). Accordingly, we deny his petition for habeas

relief.

AFFIRMED.