                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           MAR 08 2013

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

TRACEY GODFREY,                                  No. 10-35099

              Petitioner - Appellant,            D.C. No. 9:09-cv-00035-DWM-
                                                 JCL
  v.

ATTORNEY GENERAL OF THE STATE                    MEMORANDUM *
OF MONTANA and LEROY
KIRKEGARD, Warden,

              Respondents - Appellees.

                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                            Submitted March 6, 2013 **
                                Portland, Oregon

Before: CLIFTON and BEA, Circuit Judges, and MAHAN, District Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 James C. Mahan, District Judge for the U.S. District
Court for the District of Nevada, sitting by designation.
      Tracy Godfrey appeals the denial of his habeas corpus petition under 28

U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291 and § 2253(a), and we

affirm.

      The prosecution’s cross-examination questions about Godfrey’s failure to

come forward with his exculpatory story before trial violated his due process rights

under Doyle v. Ohio, 426 U.S. 610 (1976). However, the Montana Supreme

Court’s rejection of his Doyle claim was not contrary to or an unreasonable

application of clearly established federal law, see 28 U.S.C. § 2254(d); Harrington

v. Richter, 131 S.Ct. 770, 785 (2012), because the Doyle violation was harmless.

The weighty evidence against Godfrey at trial was strong enough to preclude a

determination that the error had a substantial effect in determining the jury’s

verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-39 (1993).

      The Montana Supreme Court’s rejection of Godfrey’s claim that his lawyer

was ineffective by not objecting to the prosecution’s questions about his silence

was not an unreasonable application of Strickland v. Washington, 466 U.S. 668

(1984). Even assuming his lawyer acted unreasonably, Godfrey has not shown “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694.
       Godfrey concedes the procedural default of his claim that he was denied the

right to counsel at his re-sentencing hearing. Thus, this court may not reach the

merits of this claim. Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007).

      AFFIRMED.
