                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAR 24 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DAVID WAYNE KIEHLE,                              No. 12-16443

              Petitioner - Appellant,            D.C. No. 2:11-cv-00352-GMS

  v.
                                                 MEMORANDUM*
CHARLES L. RYAN and ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Arizona
                    G. Murray Snow, District Judge, Presiding

                      Argued and Submitted March 13, 2015
                           San Francisco, California

Before: NOONAN, W. FLETCHER, and CHRISTEN, Circuit Judges.

       David Wayne Kiehle appeals the district court’s order denying his petition

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253(a). We affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      We review a district court’s denial of a habeas petition de novo. Rhoades v.

Henry, 598 F.3d 495, 500 (9th Cir. 2010). We may grant relief if the state court’s

decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. § 2254(d)(1).

1.    Kiehle asserts an ineffective assistance of counsel claim based on his

attorney’s failure to participate in supplemental closing argument. We decline to

expand the certificate of appealability to encompass the uncertified issues raised in

Kiehle’s opening brief because Kiehle has not made “‘a substantial showing of the

denial of a constitutional right.’” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)

(quoting 28 U.S.C. § 2253(c)(2)).

2.     Generally, to prevail on an ineffective assistance of counsel claim a

petitioner must show: (1) counsel’s performance was deficient; and (2) the

deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668,

687 (1984). In United States v. Cronic, the Supreme Court held that prejudice may

be presumed when “the likelihood that any lawyer, even a fully competent one,

could provide effective assistance is so small that a presumption of prejudice is

appropriate without inquiry into the actual conduct of the trial.” 466 U.S. 648,

659–60 (1984).


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      The Arizona Superior Court did not unreasonably conclude that Cronic “is

inapplicable to this case.” No Supreme Court precedent supports finding a Cronic

violation under the circumstances presented here: the trial court’s decision to

permit supplemental closing argument presented Kiehle’s attorney with a difficult

situation, but as the district court explained, Kiehle’s attorney “could have

emphasized that the fingerprints were not David’s, could have sought to implicate

B., could have suggested that an unknown party was in the house, or could have

merely expounded on the standard of reasonable doubt.” The circumstances were

such that a competent lawyer could provide effective assistance. Cf. id. at 660–61

(discussing Powell v. Alabama, 287 U.S. 45 (1932)).

3.    Kiehle’s motion to supplement the district court record is denied.

      AFFIRMED.




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