of professionally competent assistance, will the petitioner meet this initial burden. Strickland, 466 U.S. at 690, 104 S.Ct. at 2068; Quintero-Barraza, 78 F.3d at 1348.
If the petitioner makes this showing, he must then establish that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 693, 104 S.Ct. at 2067. The errors must not merely undermine confidence in the outcome of the trial, but must result in a proceeding that was fundamentally unfair. Lockhart, 506 U.S. at 369, 113 S.Ct. at 842-43; Quintero-Barraza, 78 F.3d at 1348.
The petitioner asserts that his counsel was ineffective when she stated during closing argument that she was not contesting the four burglary counts unrelated to the burglary and murder of Mrs. Allen, but was only contesting that burglary and the murder:
MAY IT PLEASE THE COURT, COUNSEL, LADIES AND GENTLEMEN OF THE JURY, I'M GOING TO START OFF MY ARGUMENT BY TELLING YOU STRAIGHT OUT THAT RONALD MCCLAIN, MY CLIENT, IS NOT IN THIS TRIAL BECAUSE HE IS CONTESTING THE BURGLARIES THAT ARE NOT CONNECTED WITH THIS MURDER. THAT'S NOT WHY HE'S HERE. HE IS IN THIS TRIAL BECAUSE HE IS CONTESTING THAT HE WAS A PART OF THE BURGLARY AND SUBSEQUENT MURDER OF ESTHER MAE ALLEN. THAT'S WHY HE'S HERE. AND I AM NOT GOING TO STRAIN CREDIBILITY OR COMMON SENSE BY ARGUING TO YOU THAT OF ALL OF THE COUNTS THAT ARE CHARGING MY CLIENT WITH BURGLARY THAT BY SOME MISHAPS - MISCHANCE OR BY SOME QUIRK THAT PRINTS WERE FOUND AND THAT HE HAD NOTHING TO DO WITH IT. I'M NOT GOING TO TELL YOU THAT BECAUSE I CAN'T. AND I'M [NOT] GOING TO CONDONE HIS ACTIONS IN THOSE BURGLARIES BECAUSE I CAN'T DO THAT EITHER. AND I'M NOT GOING TO TELL YOU THAT BURGLARY BECAUSE IT'S A LESSER CHARGE THAN MURDER IS *1143 OKAY BECAUSE IT'S NOT. IT'S A VIOLATION OF SOMEBODY'S HOME AND OF THEIR PROPERTY AND OF THEIR SECURITY, AND I CAN'T CONDONE MY CLIENT'S ACTIONS IN COMMITTING THOSE BURGLARIES. [¶] BUT I WILL ARGUE TO YOU, LADIES AND GENTLEMEN, THAT GOING INTO SOMEBODY'S HOME WHEN THEY'RE NOT THERE AND TAKING PROPERTY OUT IS [SIC] AS TERRIBLE AS THAT IS, AND IT IS, IS AN ENTIRELY DIFFERENT MATTER THAN GOING INTO [THE] HOME OF AN ELDERLY LADY WHO IS ASLEEP AND BEATING HER TO DEATH. AND I WOULD SUBMIT TO YOU THAT THE EVIDENCE IN THIS TRIAL WHEN YOU TAKE A CLOSE LOOK AT IT, AND I WANT TO GO THROUGH THE DIFFERENT COUNTS; AND I WILL ARGUE TO YOU ON BEHALF OF MY CLIENT THAT THIS IS, NUMBER ONE, NOT A GROUP ACTIVITY IN TERMS OF MY CLIENT BEING WITH THE OTHER TWO DEFENDANTS, AND THAT THE EVIDENCE IS NOT CLEAR BEYOND A REASONABLE DOUBT THAT MY CLIENT, RONALD MCCLAIN, WAS EVER AT 248 OBISPO. RT 293:1-294:6.
There is no merit to petitioner's claim that this closing argument constitutes ineffective assistance