
    Ricky Darnell HAYES, Petitioner-Appellant, v. Silva GARCIA, Warden, Respondent-Appellee.
    No. 03-55976.
    United States Court of Appeals, Ninth Circuit.
    Submitted June 9, 2004.
    
    Decided Aug. 4, 2004.
    Michael J. Brennan, Esq., Manhattan Beach, CA, for Petitioner-Appellant.
    Michael W. Whitaker, DAG, AGCA-Of-fice of the California Attorney General (LA), Los Angeles, CA, for Respondent-Appellee.
    Before: T.G. NELSON, TASHIMA and FISHER, Circuit Judges.
    
      
       This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Ricky Hayes appeals the denial of his habeas petition challenging his California conviction. We may reverse the district court’s denial of habeas relief only if California’s decision to uphold Hayes’ conviction was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

The California court’s finding of no constitutional error in the use of California Jury Instruction (“CALJIC”) 17.41.1 was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court. As we explain in Brewer v. Hall, No. 03-55974, filed concurrently with this decision, no Supreme Court case clearly establishes a constitutional problem with that jury instruction.

Nor did the California court unreasonably apply clearly established federal law in finding no ineffective assistance in Hayes’ counsel’s failure to object to CALJIC 17.41.1 at trial. There is no reason to believe that the use of CALJIC 17.41.1 constituted legal error, and no evidence that such an objection would have helped Hayes. Thus, Hayes has not shown, as he must, that his “counsel made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment” and that “the deficient performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

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.
     
      
      . Because the facts are known to the parties, we do not recite them here.
     