                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 15 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CHRISTOPHER DALE SMITH,                          No.   14-56482

              Petitioner-Appellant,              D.C. No.
                                                 3:10-cv-02429-BAS-JLB
 v.

LARRY SMALL, Warden and                          MEMORANDUM*
ATTORNEY GENERAL FOR THE
STATE OF CALIFORNIA,

              Respondents-Appellees.


                   Appeal from the United States District Court
                      for the Southern District of California
                   Cynthia A. Bashant, District Judge, Presiding

                           Submitted August 31, 2017**
                              Pasadena, California

Before: W. FLETCHER and IKUTA, Circuit Judges, and BARKER,*** District
Judge.



      *
             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).
      ***
            The Honorable Sarah Evans Barker, United States District Judge for
the Southern District of Indiana, sitting by designation.
      Christopher Smith appeals the district court’s denial of his petition for a writ

of habeas corpus under 28 U.S.C. § 2254. He raises three certified claims: (1)

denial of the right to present a complete defense, (2) cumulative trial error, and (3)

ineffective assistance of appellate counsel. We review the district court’s order de

novo, Brown v. Horell, 644 F.3d 969, 978 (9th Cir. 2011), and affirm.

      At the time the California Supreme Court denied Smith’s claim that the trial

court’s exclusion of the testimony of three proposed defense witnesses deprived

Smith of his constitutional right to present a complete defense, “the Supreme Court

ha[d] not decided any case either ‘squarely address[ing]’ the discretionary

exclusion of evidence and the right to present a complete defense or ‘establish[ing]

a controlling legal standard’ for evaluating such exclusions.” Id. at 983 (second

and third alterations in original) (quoting Moses v. Payne, 555 F.3d 742, 758 (9th

Cir. 2009)). Smith therefore “cannot . . . show that the state appellate court’s

ruling was either contrary to or an unreasonable application of clearly established

Supreme Court precedent.” Id.

      Because the California Supreme Court could reasonably have concluded that

the trial court’s evidentiary rulings were not errors, constitutional or otherwise, it

necessarily could reasonably have determined that there was no cumulative error




                                            2
that rendered Smith’s trial fundamentally unfair. Cf. Fairbank v. Ayers, 650 F.3d

1243, 1257 (9th Cir. 2011).

      The California Supreme Court’s rejection of Smith’s ineffective assistance

of appellate counsel claim was neither contrary to nor an unreasonable application

of Strickland v. Washington, 466 U.S. 668 (1984). “[A]ppellate counsel’s failure

to raise issues on direct appeal does not constitute ineffective assistance when

appeal would not have provided grounds for reversal.” Wildman v. Johnson, 261

F.3d 832, 840 (9th Cir. 2001). The state court could reasonably have concluded

that Smith’s appeal of the exclusion of certain testimony from the three proposed

witnesses would have been meritless. We do not consider Smith’s further

argument that appellate counsel was ineffective for failing to procure a transcript of

Smith’s first trial, as that claim was not raised in the petition. See Robinson v.

Kramer, 588 F.3d 1212, 1217–18 (9th Cir. 2009).

      AFFIRMED.




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