Christopher Smith v. Larry Small , 697 F. App'x 538 ( 2017 )

FILED
NOT FOR PUBLICATION
SEP 15 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER DALE SMITH, No. 14-56482
Petitioner-Appellant, D.C. No.
3:10-cv-02429-BAS-JLB
v.
LARRY SMALL, Warden and MEMORANDUM*
ATTORNEY GENERAL FOR THE
STATE OF CALIFORNIA,
Respondents-Appellees.
Appeal from the United States District Court
for the Southern District of California
Cynthia A. Bashant, District Judge, Presiding
Submitted August 31, 2017**
Pasadena, California
Before: W. FLETCHER and IKUTA, Circuit Judges, and BARKER,*** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
Christopher Smith appeals the district court’s denial of his petition for a writ
of habeas corpus under 28 U.S.C. § 2254. He raises three certified claims: (1)
denial of the right to present a complete defense, (2) cumulative trial error, and (3)
ineffective assistance of appellate counsel. We review the district court’s order de
novo, Brown v. Horell, 644 F.3d 969, 978 (9th Cir. 2011), and affirm.
At the time the California Supreme Court denied Smith’s claim that the trial
court’s exclusion of the testimony of three proposed defense witnesses deprived
Smith of his constitutional right to present a complete defense, “the Supreme Court
ha[d] not decided any case either ‘squarely address[ing]’ the discretionary
exclusion of evidence and the right to present a complete defense or ‘establish[ing]
a controlling legal standard’ for evaluating such exclusions.” Id. at 983 (second
and third alterations in original) (quoting Moses v. Payne, 555 F.3d 742, 758 (9th
Cir. 2009)). Smith therefore “cannot . . . show that the state appellate court’s
ruling was either contrary to or an unreasonable application of clearly established
Supreme Court precedent.” Id.Because the California Supreme Court could reasonably have concluded that
the trial court’s evidentiary rulings were not errors, constitutional or otherwise, it
necessarily could reasonably have determined that there was no cumulative error
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that rendered Smith’s trial fundamentally unfair. Cf. Fairbank v. Ayers, 650 F.3d
1243, 1257 (9th Cir. 2011).
The California Supreme Court’s rejection of Smith’s ineffective assistance
of appellate counsel claim was neither contrary to nor an unreasonable application
of Strickland v. Washington, 466 U.S. 668 (1984). “[A]ppellate counsel’s failure
to raise issues on direct appeal does not constitute ineffective assistance when
appeal would not have provided grounds for reversal.” Wildman v. Johnson, 261
F.3d 832, 840 (9th Cir. 2001). The state court could reasonably have concluded
that Smith’s appeal of the exclusion of certain testimony from the three proposed
witnesses would have been meritless. We do not consider Smith’s further
argument that appellate counsel was ineffective for failing to procure a transcript of
Smith’s first trial, as that claim was not raised in the petition. See Robinson v.
Kramer, 588 F.3d 1212, 1217–18 (9th Cir. 2009).
AFFIRMED.
3