
    Patrick Michael KNOST, Petitioner-Appellant, v. JOSEPH S. WARSHOLL, II, Probation Officer, Respondent-Appellee.
    No. 10-15987.
    United States Court of Appeals, Ninth Circuit.
    Submitted April 20, 2011.
    
    Filed May 5, 2011.
    Quin Anthony Denvir, Davis, CA, for Petitioner-Appellant.
    Tami M. Krenzin, Deputy Attorney General, AGCA — Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee.
    Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

California state probationer Patrick Michael Knost appeals from the district court’s order denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253 and affirm.

Knost contends that his trial counsel was ineffective for failing to move for acquittal at the close of the prosecutor’s case in chief. Specifically, he argues that at that point in time, the prosecution had failed to prove beyond a reasonable doubt that the victim was unconscious or asleep when he penetrated her, as required by Cal. Pen. Code § 289(d). He asserts that had his counsel moved for acquittal, there is a reasonable probability that the motion would have been granted.

The California Court of Appeal, applying Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), determined that there was not a reasonable probability that Knost would have received a more favorable determination if his counsel had moved for acquittal at the close of the prosecution’s case. Based on the record before us, this determination was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, nor was it based on an unreasonable determination of the facts in light of the evidence. See 28 U.S.C. § 2254(d); Mitchell v. Esparza, 540 U.S. 12, 18, 124 S.Ct. 7, 157 L.Ed.2d 263 (2003) (per curiam).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     