Alan Daniels v. Robert Hildreth , 405 F. App'x 222 ( 2010 )

FILED
NOT FOR PUBLICATION DEC 10 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALAN D. DANIELS, No. 10-15221
Petitioner - Appellant, D.C. No. 2:02-cv-01352-LRH-
LRL
v.
ROBERT HILDRETH, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted December 8, 2010 **
San Francisco, California
Before: THOMPSON, COWEN *** and SILVERMAN, Circuit Judges.
Alan Daniels appeals the district court’s denial of his Petition for Writ of
Habeas Corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we look
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
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to the last reasoned state court decision to determine whether it was contrary to, or
an unreasonable application of, Federal law. 28 U.S.C. § 2254(d); Cook v. Schriro,
538 F.3d 1000, 1015 (9th Cir. 2008). We affirm.
The Nevada Supreme Court’s rejection of Daniels’ misjoinder claim was not
contrary to, or an unreasonable application of, Supreme Court precedent. Daniels
argues that he was denied a fair trial by the trial court allowing the robberies of the
two bars to be tried in one case and denying his motion to sever. But evidence of
the Pepe Muldoon’s robbery would have been admissible in a separate trial of the
Inn Zone robbery, and vice versa, as the two crimes were part of the same
“common plan or scheme.” See Nev. Rev. Stat. § 48.045(2); see also Fed. R. Evid.
404(b). And the strength of the State’s evidence of the Inn Zone robbery was not
significantly stronger than that of the Pepe Muldoon’s robbery. See Sandoval v.
Calderon, 241 F.3d 765, 773 (9th Cir. 2001) (finding lack of prejudicial joinder
given strength of State’s case in both sets of crimes and cross-admissibility of
evidence); Bean v. Calderon, 163 F.3d 1073, 1084-86 (9th Cir. 1998) (finding
prejudicial joinder given lack of cross-admissibility of evidence and vigorous
dispute regarding physical evidence of one crime).
Daniels also argues that his trial counsel rendered ineffective assistance by
failing to object to or move to suppress the Pepe Muldoon’s bartender’s in-court
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identification. The Nevada Supreme Court was not unreasonable in ruling that
Daniels’ motion to suppress the lineup identification would likely not have been
granted. The court was also not unreasonable to hold that the outcome of the case
would not have been different even if the lineup identification had been
suppressed. Daniels also has not shown that the Pepe Muldoon’s bartender’s in-
court identification would have been disallowed had counsel objected. And given
the strength of other evidence linking Daniels to the Pepe Muldoon’s robbery,
including the undisputed presence of his fingerprints on the napkin used by the
robber, there is no reasonable probability that the outcome of trial would have been
any different even if Daniels’ trial counsel successfully objected to the Pepe
Muldoon’s bartender’s in-court identification. See Strickland v. Washington, 466
U.S. 668, 694 (1984) (counsel’s performance is prejudicial if “there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.”).
Finally, we deny Daniels’ motion to expand the certificate of appealability to
include Grounds 3 and 4 of his habeas petition. The district court denied a COA
on Grounds 3 and 4 because Daniels failed to demonstrate cause for his failure to
timely present those claims in his first state petition. Jurists of reason would not
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“find it debatable whether the district court was correct in its procedural ruling.”
Slack v. McDaniel, 529 U.S. 473, 478 (2000).
AFFIRMED.