                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 10 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JIMMY TODD KIRKSEY,                              No. 13-99009

              Petitioner - Appellant,            D.C. No. 2:97-cv-00333-LRH-
                                                 PAL
 v.

RENEE BAKER, Warden; et al.,                     MEMORANDUM*

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                        Argued and Submitted July 6, 2015
                            San Francisco, California

Before: TALLMAN, M. SMITH, and MURGUIA, Circuit Judges.

      Jimmy Kirksey appeals from the district court’s dismissal as untimely and/or

procedurally defaulted of several claims raised in his 28 U.S.C. § 2254 habeas

petition, and denial on the merits of his remaining claims. We have jurisdiction

under 28 U.S.C. § 2253, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                            I

      The district court found that all but three of Kirksey’s claims were

procedurally defaulted. Kirksey argues that the district court erred in concluding

that Kirksey did not show adequate cause and prejudice to excuse the procedural

default. See Murray v. Carrier, 477 U.S. 478, 488 (1986).

      Kirksey claims that his late discovery of evidence that the state trial court

authored the supplemental competency report of Dr. Franklin Master is adequate

cause to excuse Kirksey’s default of Claims 1, 2, 3(B), and 4. But the report was

available to Kirksey’s trial counsel well before Kirksey pleaded guilty, affording

counsel plenty of time to explore any doubts about its authorship while the original

proceedings were ongoing. See Murray, 477 U.S. at 488.

      Kirksey argues that his original post-conviction counsel rendered ineffective

assistance in failing to raise evidence that the state trial court wrote Dr. Master’s

supplemental competency report, and that counsel’s ineffective assistance is

adequate cause for Kirksey’s default of Claim 24. See Martinez v. Ryan, 132 S. Ct.

1309, 1320 (2012). The district court correctly rejected this argument because

Kirksey has not shown prejudice. Even if post-conviction counsel could have

demonstrated that the state trial court wrote the report for Dr. Master’s signature,

that fact alone would not sustain a claim that the court was biased against Kirksey.


                                           2
See Strickland v. Washington, 466 U.S. 668, 691, 694 (1984); Smith v. Mahoney,

611 F.3d 978, 997 (9th Cir. 2010) (explaining that judicial bias will be found

“[o]nly in the most extreme of cases” (alterations and quotation marks omitted)).

      Kirksey argues that he has presented sufficient “new reliable evidence” of

his actual innocence to excuse procedural default of all his claims. See Schlup v.

Delo, 513 U.S. 298, 316, 324 (1995). But the prosecutor’s argument at the trial of

Kirksey’s accomplice was not evidence. See D’Aquino v. United States, 192 F.2d

338, 366-67 (9th Cir. 1951). Further, contrary to Kirksey’s argument, the medical

examiner’s testimony before the grand jury that blunt trauma to the head caused

the victim’s death was internally consistent. Finally, although Kirksey’s

accomplice’s testimony in post-conviction proceedings was incompatible with

Kirksey’s own admission to intentionally beating the victim to death, Kirksey

supplies no reason why a jury would more likely than not believe the accomplice’s

version of events over Kirksey’s. See Schlup, 513 U.S. at 327.

                                          II

      On the merits, as to Claim 3(D), Kirksey has presented no evidence to

suggest that he would have insisted on going to trial if counsel had mounted a more

vigorous investigation of the charge against Kirksey. Accordingly, the Nevada




                                          3
Supreme Court reasonably held that any deficiency in trial counsel’s investigation

did not cause Kirksey prejudice. See Hill v. Lockhart, 474 U.S. 52, 59 (1985).

      As to Claim 10, the state court determined that Judge Lehman did not violate

Kirksey’s constitutional right to be present during critical proceedings when the

judge contacted Dr. Master off the record about a previously submitted

competency report. Kirksey has not shown that this determination “was contrary

to, or an unreasonable application of, clearly established” Supreme Court

precedent. 28 U.S.C. § 2254(d)(1). The Supreme Court has never specifically held

that a critical proceeding includes a judge’s ex parte conference with a mental

competency expert. See, e.g., Kentucky v. Stincer, 482 U.S. 730, 745-47 (1987).

      As to Claim 8, the state court concluded that Kirksey’s appellate counsel

was constitutionally adequate even though counsel failed to order certain

transcripts. Again, Kirksey does not explain how this determination was

unreasonable. Nor does he explain how the Nevada Supreme Court acted

unreasonably when it declined to appoint co-counsel. In addition, Kirksey has not

demonstrated that the state court unreasonably rejected his claim that his appellate

counsel was ineffective for failing to object to the trial judge’s ex parte

communication with Dr. Master. Kirksey was never deemed incompetent under the

appropriate controlling standards for determining competency, see Godinez v.


                                           4
Moran, 509 U.S. 389, 396 (1993), and Kirksey therefore cannot show that he was

prejudiced by the communication, see Campbell v. Rice, 408 F.3d 1166, 1172 (9th

Cir. 2005) (en banc).

      AFFIRMED.




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