                                                               NOT FOR PUBLICATION                FILED
                                             UNITED STATES COURT OF APPEALS                       DEC 24 2015
                                                                                               MOLLY C. DWYER, CLERK
                                                                                                U.S. COURT OF APPEALS
                                                               FOR THE NINTH CIRCUIT


  ROBERT MCDANIELS,                                                           No. 09-17339

                            Petitioner - Appellant,                           D.C. No. 4:05-cv-00904-PJH

         v.

  RICHARD J. KIRKLAND, Warden,

                            Respondent - Appellee.

                                      Appeal from the United States District Court
                                           for the Northern District of California
                                    Phyllis J. Hamilton, Chief District Judge, Presiding

  KEELON T. JENKINS,                                                          No. 11-15030

                            Petitioner - Appellant,                           D.C. No. 3:05-cv-02003-MHP

         v.
                                                                              MEMORANDUM*
  MICHAEL S. EVANS, Warden,

                            Respondent - Appellee.

                                       Appeal from the United States District Court
                                           for the Northern District of California
                                      Marilyn H. Patel, Senior District Judge, Presiding


                                                            
              *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3. 
                          Argued and Submitted En Banc
                     June 16, 2015—San Francisco, California

Before: THOMAS, Chief Judge and PREGERSON, McKEOWN, W. FLETCHER,
BERZON, TALLMAN, CALLAHAN, IKUTA, CHRISTEN, HURWITZ and
FRIEDLAND, Circuit Judges.

      Robert McDaniels and Keelon Jenkins appeal from denials of their separate

28 U.S.C. § 2254 petitions for writs of habeas corpus. We address their Batson

claims in a published opinion filed concurrently with this memorandum

disposition. Here, we address their ineffective-assistance-of-counsel claims.

      We affirm the district court’s denial of McDaniels’s habeas petition with

respect to his ineffective-assistance-of-counsel claim. Fairminded jurists could

disagree about whether McDaniels’s claim is meritorious, which precludes federal

habeas relief. See Harrington v. Richter, 562 U.S. 86, 101-05 (2011).

      Jenkins’s briefing on appeal addresses ineffective-assistance-of-counsel

claims for which we did not previously grant a certificate of appealability

(“COA”). We construe this briefing as a motion to expand the COA. See 9th

Cir. R. 22-1(e). So construed, we grant the motion in part and deny it in part.

We deny the motion with respect to Jenkins’s claim under People v. Marsden, 465

P.2d 44 (1970) (in bank), which we recognize as an ineffective-assistance-of-

counsel claim for purposes of federal habeas, see Robinson v. Kramer, 588 F.3d


                                         2
1212, 1216 (9th Cir. 2009). We grant the motion, however, with respect to

Jenkins’s other ineffective-assistance-of-counsel claim, which is based on his

allegation that trial counsel attacked Jenkins’s credibility at trial. Because this

claim is “adequate to deserve encouragement to proceed further,” Slack v.

McDaniel, 529 U.S. 473, 484 (2000), we order the State to submit briefing in

response to it. We return this claim to the three-judge panel for further

proceedings consistent with this disposition.

      No. 09-17339 AFFIRMED. Motion to expand the certificate of

appealability GRANTED IN PART and DENIED IN PART in No. 11-15030;

No. 11-15030 REMANDED IN PART to the three-judge panel.




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