                                                                            FILED
                             NOT FOR PUBLICATION                             APR 21 2010

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




                             FOR THE NINTH CIRCUIT



SIDNEY HUBBARD,                                  No. 07-16570

               Petitioner - Appellant,           D.C. No. CV-02-00023-ALA

  v.
                                                 MEMORANDUM *
TOM L. CAREY,

               Respondent - Appellee.



                     Appeal from the United States District Court
                        for the Eastern District of California
                     Arthur L. Alarcón, Circuit Judge, Presiding

                              Submitted April 5, 2010 **

Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       California state prisoner Sidney Hubbard appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

pursuant to 28 U.S.C. § 2253, and we affirm.

          *
             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.
      Hubbard contends that he received ineffective assistance of counsel at trial

because his counsel failed to investigate potentially exculpatory evidence

concerning the alleged reputation of the robbery victim. However, Hubbard failed

to demonstrate that such evidence could have been discovered by counsel with

reasonable diligence. Thus, the California court’s rejection of this claim were

neither contrary to, nor an unreasonable application of, clearly established Supreme

Court law. See 28 U.S.C. § 2254(d)(1); see also Strickland v. Washington, 466

U.S. 668, 687 (1984).

      Hubbard also contends that he received ineffective assistance of counsel

because counsel did not object to the admission, at trial, of a videotaped store

surveillance footage that lacked audio. Hubbard maintains that the missing audio

component would have provided exculpatory evidence. However, Hubbard has

failed to show that the missing audio portion was exculpatory. Thus the California

court’s rejection of this claim was neither contrary to, nor an unreasonable

application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1);

see also Strickland, 466 U.S. at 687.

      We construe appellant’s additional arguments as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir. R.




                                           2                                       07-16570
22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per

curiam).

      AFFIRMED.




                                        3                                   07-16570
