                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUL 12 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 GLENN DARNELL DEAN,                             No.     15-15630

                 Petitioner-Appellant,           D.C. No.
                                                 2:12-cv-00323-JCM-GWF
    v.

 DWIGHT NEVEN, Warden and                        MEMORANDUM*
 ATTORNEY GENERAL OF THE STATE
 OF NEVADA,

                 Respondents-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                    James C. Mahan, District Judge, Presiding

                             Submitted July 8, 2016**
                             San Francisco, California

Before: SILVERMAN and NGUYEN, Circuit Judges and ANELLO,*** 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 Michael M. Anello, District Judge for the U.S. District
Court for the Southern District of California, sitting by designation.
      Glenn Dean appeals from the district court’s order denying his habeas

petition after he was convicted of first degree kidnapping with a deadly weapon,

conspiracy to commit kidnapping, and robbery with a deadly weapon. We have

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

      1. The Nevada Supreme Court's decision to deny Dean’s insufficient-

evidence claim was a reasonable application of the law. Dean’s claim rests on

assertions that the victim’s testimony was unreliable. But it was for the jury, not

the federal court on habeas review, to assess the victim’s credibility. Because the

victim’s testimony was sufficient to establish each element of the charged crimes,

and a rational trier of fact could have credited that testimony, we uphold the jury’s

verdict. Jackson v. Virginia, 443 U.S. 307, 319 (1979).

      2. The Nevada Supreme Court reasonably denied Dean’s ineffective

assistance of counsel claim alleging that his counsel failed to object to the first

degree kidnapping jury instructions. Substantial evidence supported Dean’s

conviction on the theory that he kidnapped the victim with the purpose of killing

him. Therefore, he cannot show that the instructions on the robbery theory, even if

they were extraneous, “had a substantial or injurious effect or influence in

determining the jury’s verdict.” Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008).

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      3. Similarly, the Nevada Supreme Court reasonably denied Dean’s

ineffective assistance of counsel claim alleging that his counsel failed to object to

hearsay testimony. Dean argues that his counsel should have objected to testimony

that a tuxedo shop attendant expressed concern about the victim’s wounds. But he

fails to show any prejudice from this failure to object. There was ample evidence

that the victim was bleeding, including testimony from the victim, a police officer

who interviewed him, and the mother of the victim’s girlfriend. Given this

evidence, Dean cannot show a reasonable probability that the hearsay testimony

affected the outcome of the trial. Strickland v. Washington, 466 U.S. 668, 694

(1984).

      4. The Nevada Supreme Court also reasonably denied Dean’s claim that the

trial court sentenced him based on a misunderstanding of his criminal record. Dean

argues that the trial court was misled by a mistake in the presentence report

(“PSR”) saying that he had six prior incarcerations, when in fact he only had one

prior incarceration resulting from concurrent sentences on his prior convictions.

Dean fails to show that the PSR was erroneous or, even if it was, that the court

relied on that error. C.f. Townsend v. Burke, 334 U.S. 736, 741 (1948) (holding that

a defendant’s due process rights may be violated when he shows that the trial

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court’s sentence rests “on a foundation [that is] extensively and materially false").

While the PSR said in a summary section that he had six felony convictions and six

incarcerations, it also listed in detail each conviction and sentence, showing that

the sentences were concurrent. Moreover, the record shows that the trial court was

influenced not by the number of discrete terms Dean spent in prison, but rather by

the number of felony convictions on his record. The Nevada Supreme Court’s

decision to deny this claim was therefore a reasonable application of the law.

      5. We decline to expand the certificate of appealability to consider the

whether the district court erred in concluding that Dean failed to exhaust his

ineffective assistance of counsel claim concerning his trial counsel’s failure to

investigate his shoulder injury. When, as here, the district court denies a habeas

petition on procedural grounds, a COA should be issued only if reasonable jurists

would find it debatable both “whether the petition states a valid claim of the denial

of a constitutional right” and “whether the district court was correct in its

procedural ruling.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The petition does

not state a valid claim of the denial of a constitutional right.

      Dean asserts that his trial counsel failed to subpoena medical records

showing that he had a dislocated shoulder at the time of the kidnapping. But Dean

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does not adequately demonstrate prejudice from his counsel's performance. The

medical records alone would not have refuted the victim's testimony that he

racked a gun during the kidnapping. They would have shown only that he had an

injury—a fact that corroborates the victim’s testimony that he wore an arm sling.

Absent other credible evidence that Dean’s injuries prevented him from racking a

gun—evidence which Dean has not adduced—there is no reasonable probability

these medical records would have changed the outcome of the trial.

     AFFIRMED.




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