Robert Smith v. Renee Baker

FILED
NOT FOR PUBLICATION
OCT 20 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT ANTHONY SMITH, No. 15-16711
Petitioner-Appellant, D.C. No.
3:08-cv-00335-RCJ-WGC
v.
RENEE BAKER and ADAM PAUL MEMORANDUM*
LAXALT,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted October 18, 2016 **
San Francisco, California
Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.
*
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)
Robert Anthony Smith (Smith) appeals the district court’s denial of his
petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. We have
jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas
relief is available only if a state court’s prior adjudication of the petitioner’s claims
“(1) 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; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). Smith was convicted by a Nevada
jury of second degree murder. The claims he is raising now were adjudicated by
the Nevada Supreme Court. We hold that the Nevada Supreme Court’s dismissal
of Smith’s prosecutorial misconduct claims and ineffective assistance of trial
counsel claims was not contrary to or an unreasonable application of established
federal law.
I
Smith alleges that several of the prosecutor’s statements during the
examination of a witness and again during closing argument amounted to a
violation of his due process and fair trial rights under the Fifth, Sixth, and
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Fourteenth Amendments. In Darden v. Wainwright, 477 U.S. 168, 181 (1986), the
Supreme Court “measured the fairness of [a] petitioner’s trial by considering, inter
alia, (1) whether the prosecutor’s comments manipulated or misstated the
evidence; (2) whether the trial court gave a curative instruction; and (3) the weight
of the evidence against the accused.” Tak Sun Tan v. Runnels, 413 F.3d 1101,
1115 (9th Cir. 2005) (citing Darden, 477 U.S. at 181). During Smith’s trial, the
prosecutor did mischaracterize the prior testimony of an eyewitness who had
testified inconsistently about whether she had seen Smith shoot the victim.
However, the court sustained an immediate objection to the mischaracterization,
and the remaining evidence against Smith included a second eyewitness
identification of Smith as the shooter and .9 millimeter Luger cartridges found in
Smith’s apartment on the day of the shooting that had the same head stamp as the
casing recovered from the truck bed where the victim was shot. Thus, the Nevada
Supreme Court’s conclusion that the prosecutor’s misstatements did not render
Smith’s trial unfair was not an unreasonable application of established federal law.
28 U.S.C. § 2254(d)(1). At the very least, “fairminded jurists could disagree on the
correctness of the state court’s decision,” Harrington v. Richter, 562 U.S. 86, 101
(2011) (internal quotations omitted), and Smith therefore is not entitled to federal
habeas relief on this claim, see 28 U.S.C. § 2254(d)(1).
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Smith also alleges that during closing argument the prosecutor misstated the
law regarding the lesser-included offense of voluntary manslaughter, and that this
misstatement rendered the trial fundamentally unfair. The Supreme Court has
cautioned that “a criminal conviction is not to be lightly overturned on the basis of
a prosecutor’s comments standing alone, for the statements or conduct must be
viewed in context; only by so doing can it be determined whether the prosecutor’s
conduct affected the fairness of the trial.” United States v. Young, 470 U.S. 1, 11
(1985). Assessing the statement in context, it is clear that the prosecutor in
Smith’s case did not misstate the law in closing argument but rather restated
relevant jury instructions and applied those instructions to the facts in evidence.
The Nevada Supreme Court did not unreasonably apply established federal law, 28
U.S.C. § 2254(d)(1), in concluding that the prosecutor’s closing argument did not
“so infect[] the trial with unfairness as to make the resulting conviction a denial of
due process,” Jones v. Ryan, 691 F.3d 1093, 1102 (9th Cir. 2012) (quoting
Darden, 477 U.S. at 181). Smith is not entitled to federal habeas relief on this
claim. See 28 U.S.C. § 2254(d)(1).
II
Smith next argues that he received ineffective assistance of counsel because
his trial attorney failed to properly investigate the case, present exculpatory
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witnesses, and object to inadmissible testimony. To prove ineffective assistance of
counsel, Smith must make two showings: first, that his attorney’s performance was
deficient, and second, that his attorney’s deficient performance prejudiced his
defense. The former “requires showing that counsel made errors so serious that
counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth
Amendment,” and the latter “requires showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial, a trial whose result is reliable.”
Strickland v. Washington, 466 U.S. 668, 687 (1984). When assessing a Strickland
claim, courts “must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance; that is, the defendant
must overcome the presumption that, under the circumstances, the challenged
action might be considered sound trial strategy.” Id. at 689 (internal quotations
and citation omitted).
Smith has shown neither deficiency on the part of his attorney nor resulting
prejudice. First, his attorney cross examined witnesses at trial regarding the
information Smith faults him for not having investigated, so it is unclear what
more the requested investigation would have yielded. Second, his attorney decided
not to call witnesses whose testimony would have conflicted with Smith’s chief
defense that someone named Mario Sanchez was in fact the shooter. This was
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likely a sound trial strategy. Third, while Smith’s attorney did not object to an
arguably improper question posed to a witness, the attorney elicited an admission
on cross examination of the witness that her prior testimony was not accurate. If
the failure to object was indeed deficient, no prejudice resulted. Therefore, the
Nevada Supreme Court did not unreasonably apply established federal law in
denying Smith’s claim for ineffective assistance of trial counsel, and Smith is not
entitled to federal habeas relief on this claim. 28 U.S.C. § 2254(d)(1).
III
Finally, we decline to expand the certificate of appealability to encompass
Smith’s six uncertified issues because no “substantial showing of the denial of a
constitutional right” has been made with respect to these claims. 28 U.S.C. §
2253(c)(2). Smith raised all six of these issues before the district court, and the
court dismissed three of the issues on procedural grounds and denied the remaining
three on the merits. The district court’s adjudication of these claims is not subject
to reasonable debate and the issues presented were not “adequate to deserve
encouragement to proceed further.” Shackleford v. Hubbard, 234 F.3d 1072, 1081
(9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal
quotation marks omitted)).
AFFIRMED.
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