                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 19 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



TARYN CHRISTIAN,                                 No. 08-17438

             Petitioner - Appellant,             D.C. No. 1:04-cv-00743-DAE-
                                                 LEK
  v.

CLAYTON FRANK, Director, State of                MEMORANDUM *
Hawaii Department of Public Safety,

             Respondent - Appellee,

 and

STATE OF HAWAII DEPARTMENT OF
PUBLIC SAFETY,

             Respondent.



                    Appeal from the United States District Court
                             for the District of Hawaii
                     David A. Ezra, District Judge, Presiding

                      Argued and Submitted October 15, 2009
                                Honolulu, Hawaii

Before: BEEZER, GRABER and FISHER, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      Petitioner-appellee-cross-appellant Taryn Christian seeks a certificate of

appealability for two additional grounds upon which he contends that he is entitled

to habeas relief pursuant to 28 U.S.C. § 2254.1 Christian argues that he is entitled

to a writ of habeas corpus because he was allegedly deprived of his constitutional

right to testify on his own behalf at his criminal trial. Christian insists that habeas

relief is also warranted because he allegedly received ineffective assistance of

counsel during his criminal trial.

      We have jurisdiction under 28 U.S.C. § 1291, and we deny Christian’s

petition for a certificate of appealability. Christian has not made a “substantial

showing” that he was denied a constitutional right. 28 U.S.C. § 2253(c)(2).

                                            I

      The district court adopted the magistrate judge’s findings and

recommendations, which held that the Hawaii trial court’s refusal to allow

Christian to testify at his trial was not contrary to clearly established federal law.

Christian has not demonstrated that a court could reach a different result regarding

his claim that he was unconstitutionally denied his right to testify at his trial.




      1
        In a concurrently filed opinion, we reverse the district court’s decision to
grant habeas relief on behalf of Christian on another ground. See Christian v.
Frank, No. 08-17236, 2010 WL _________ (9th Cir. Feb. ___, 2010).

                                            2
      The right of an accused to testify on his own behalf in a criminal trial is

guaranteed by the Fifth, Sixth and Fourteenth Amendments. Rock v. Arkansas, 483

U.S. 44, 51–53 (1987). A defendant’s right to testify, however, is not absolute and

may, in particular cases, be subservient to other legitimate interests in the criminal

trial process. Id. at 55–56. Restrictions on the right are proper provided that they

are not “arbitrary or disproportionate to the purposes [that the restrictions are]

designed to serve.” Id. at 56.

      Here, Christian has not made a “substantial showing” that the Hawaii

Supreme Court’s conclusion was contrary to clearly established federal law.

Before jury selection, the trial judge informed Christian of his right to testify. The

trial judge again emphasized this right after the close of Christian’s defense.

Christian consistently responded that he knew he had a right to testify at his trial

but that he was voluntarily choosing not to exercise that right. Even when

Christian finally interrupted the proceedings and stated that he wanted to

testify—as the prosecution was about to present its closing argument—Christian

expressed that he intended to testify only about an unproduced audio tape with

unknown content that had allegedly surfaced.




                                           3
                                           II

      The district court also adopted the magistrate judge’s findings and

recommendations in regard to Christian’s ineffective assistance of counsel claim.

The district court concluded that the Hawaii Supreme Court’s analysis of this issue

was not an unreasonable application of clearly established federal law. Again,

Christian has failed to show that a court could reach a different result regarding his

ineffective assistance of counsel claim.

      Under Strickland v. Washington, 466 U.S. 668 (1984), a petitioner claiming

ineffective assistance of counsel must show both cause and prejudice. Id. at 688,

694. To show cause, a petitioner must demonstrate that counsel’s performance at

trial was “outside the wide range of professionally competent assistance.” Id. at

688, 690. To show prejudice, a petitioner must demonstrate that there is a

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

the proceeding would have been different.” Id. at 694. In the context of habeas

petitions, the Supreme Court holds that “[o]nly those habeas petitioners who can

prove under Strickland that they have been denied a fair trial by the gross

incompetence of their attorneys will be granted the writ.” Kimmelman v.

Morrison, 477 U.S. 365, 382 (1986).




                                           4
      Here, Christian again fails to make a “substantial showing” that the Hawaii

Supreme Court’s conclusion was unreasonable. The conduct of Christian’s

counsel as to both audio tapes at issue was well within the range of professionally

accepted conduct.

      The fact that Christian’s counsel did not specifically tell the jury to turn the

volume up on the tape in no way amounts to ineffective assistance of counsel.2

Christian’s counsel read a transcript of the first audio tape to the jury and warned

the jury that certain portions were “hard to pick up.”

      Likewise, Christian’s counsel’s decision to not get audio enhancement of the

second audio tape was also reasonable.3 Counsel’s decision to not have the tape

enhanced was based on expert testimony that, even after listening to the tape

hundreds of times, the statement was unintelligible.

      DENIED.




      2
         The first audio tape contains a recording of a conversation between
Christian and a friend. In the tape, Christian makes, among other things, two very
quiet statements where he denies murdering the victim.
      3
        The second audio tape is a recording of the 911 call that was made from the
crime scene. The tape allegedly contains a statement by an unknown person
identifying someone else as the murderer.

                                           5
