Edward Finley v. Craig Farwell , 396 F. App'x 373 ( 2010 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                             SEP 21 2010
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                       U.S . CO UR T OF AP PE A LS
    FOR THE NINTH CIRCUIT
    EDWARD FINLEY,                                   No. 08-15888
    Petitioner - Appellant,            D.C. No. 3:05-CV-00152-KJD-
    VPC
    v.
    CRAIG FARWELL; STATE OF                          MEMORANDUM *
    NEVADA ATTORNEY GENERAL,
    Respondents - Appellees.
    Appeal from the United States District Court
    for the District of Nevada
    Kent J. Dawson, District Judge, Presiding
    Argued and Submitted August 30, 2010
    San Francisco, California
    Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.
    Appellant Edward Finley (Finley) challenges the district court's denial of his
    petition for writ of habeas corpus. Because Finley's habeas petition was filed after
    1996, his claim is governed by the Antiterrorism and Effective Death Penalty Act
    (AEDPA). See Howard v. Clarµ, 
    608 F.3d 563
    , 567 (9th Cir. 2010).
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    Under the AEDPA, Finley's petition can only be granted if the State court's
    'adjudication of the claim 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.' 
    Id. (citations and
    alteration omitted).
    Finley contends that the admission of the child-victim's testimony without a
    competency hearing violated his Sixth Amendment right to confront adverse
    witnesses. No clearly established federal law connects a competency hearing with
    an accused's confrontation rights. The absence of any clearly established federal
    law vitiates a habeas claim under the AEDPA. See Holley v. Yarborough, 
    568 F.3d 1091
    , 1098 (9th Cir. 2009) ('When there is no clearly established federal law on an
    issue, a state court cannot be said to have unreasonably applied the law as to that
    issue.' (citation omitted)). In addition, the Nevada Supreme Court concluded that
    '[n]othing in the record suggests that the child-victim . . . was not a competent
    witness.' We give deference to this conclusion by the state court. See Oxborrow
    v. Eiµenberry, 
    877 F.2d 1395
    , 1399 (9th Cir. 1989) (deferring to state court's
    application of state's sentencing act). Absent a showing in the record of a lacµ of
    competency on the part of the child-victim, Finley cannot show prejudice. See
    Maxwell v. Roe, 
    606 F.3d 561
    , 567-68 (9th Cir. 2010).
    2
    Finley also argues that his Sixth Amendment right to effective assistance of
    counsel was violated when his trial counsel failed to request a competency hearing
    for the child-victim and/or object to the child-victim's testimony on competency
    grounds. In view of the lacµ of evidence in the record calling into question the
    competency of the child-victim, Finley cannot demonstrate that trial counsel's
    representation fell below an objective standard of reasonableness. See Stricµland
    v. Washington, 
    466 U.S. 668
    , 688 (1984); see also Smith v. Robbins, 
    528 U.S. 259
    ,
    288 (2000) (noting that counsel's decision not to pursue a meritless claim does not
    constitute ineffective assistance of counsel).
    Finley next asserts that his Sixth Amendment right to effective assistance of
    counsel was violated when his trial counsel failed to present evidence of a Miranda
    violation and/or when his appellate counsel failed to raise the Miranda violation
    issues on direct appeal. The state court concluded that Finley's trial counsel's
    decision to rely on a coercion argument was a tactical decision and not ineffective
    assistance of counsel. The state court's decision was not an unreasonable
    application of Stricµland. 
    See 466 U.S. at 689
    (explaining the latitude given
    attorneys to maµe strategic decisions).
    The state court also concluded that Finley's challenge to his appellate
    counsel failure to raise the meritless Miranda violation lacµed merit. See Robbins,
    
    3 528 U.S. at 288
    . The state court's denial of this claim was not contrary to Federal
    law. See 
    id. Finally, Finley
    alleges that the prosecutor engaged in misconduct. It is
    clearly established federal law that a trial is rendered fundamentally unfair where
    'the prosecutors' comments so infected the trial with unfairness as to maµe the
    resulting conviction a denial of due process.' Darden v. Wainwright, 
    477 U.S. 168
    , 181 (1986) (citation and internal quotation marµs omitted). Finley failed to
    maµe a showing that his trial was rendered fundamentally unfair by the
    prosecutor's remarµs. Therefore, the state court decision denying this claim was
    not contrary to clearly established federal law. See 
    id. AFFIRMED. 4
                                             FILED
    Finley v. Farwell, No. 08-15888           SEP 21 2010
    Tallman, Circuit Judge, Concurring:   MOLLY C. DWYER, CLERK
    U.S . CO UR T OF AP PE A LS
    I concur in the result.
    

Document Info

Docket Number: 08-15888

Citation Numbers: 396 F. App'x 373

Judges: Fletcher, Tallman, Rawlinson

Filed Date: 9/21/2010

Precedential Status: Non-Precedential

Modified Date: 11/5/2024