                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 20 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROBERT ANTHONY SMITH,                            No.   15-16711

              Petitioner-Appellant,              D.C. No.
                                                 3:08-cv-00335-RCJ-WGC
 v.

RENEE BAKER and ADAM PAUL                        MEMORANDUM*
LAXALT,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                           Submitted October 18, 2016 **
                             San Francisco, California

Before: THOMAS, Chief Judge, and BEA and IKUTA, Circuit Judges.




         *
             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)
      Robert Anthony Smith (Smith) appeals the district court’s denial of his

petition for a writ of habeas corpus brought under 28 U.S.C. § 2254. We have

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

      Under the Antiterrorism and Effective Death Penalty Act of 1996, habeas

relief is available only if a state court’s prior adjudication of the petitioner’s claims

“(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States; or (2) resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). Smith was convicted by a Nevada

jury of second degree murder. The claims he is raising now were adjudicated by

the Nevada Supreme Court. We hold that the Nevada Supreme Court’s dismissal

of Smith’s prosecutorial misconduct claims and ineffective assistance of trial

counsel claims was not contrary to or an unreasonable application of established

federal law.

                                            I

      Smith alleges that several of the prosecutor’s statements during the

examination of a witness and again during closing argument amounted to a

violation of his due process and fair trial rights under the Fifth, Sixth, and


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Fourteenth Amendments. In Darden v. Wainwright, 477 U.S. 168, 181 (1986), the

Supreme Court “measured the fairness of [a] petitioner’s trial by considering, inter

alia, (1) whether the prosecutor’s comments manipulated or misstated the

evidence; (2) whether the trial court gave a curative instruction; and (3) the weight

of the evidence against the accused.” Tak Sun Tan v. Runnels, 413 F.3d 1101,

1115 (9th Cir. 2005) (citing Darden, 477 U.S. at 181). During Smith’s trial, the

prosecutor did mischaracterize the prior testimony of an eyewitness who had

testified inconsistently about whether she had seen Smith shoot the victim.

However, the court sustained an immediate objection to the mischaracterization,

and the remaining evidence against Smith included a second eyewitness

identification of Smith as the shooter and .9 millimeter Luger cartridges found in

Smith’s apartment on the day of the shooting that had the same head stamp as the

casing recovered from the truck bed where the victim was shot. Thus, the Nevada

Supreme Court’s conclusion that the prosecutor’s misstatements did not render

Smith’s trial unfair was not an unreasonable application of established federal law.

28 U.S.C. § 2254(d)(1). At the very least, “fairminded jurists could disagree on the

correctness of the state court’s decision,” Harrington v. Richter, 562 U.S. 86, 101

(2011) (internal quotations omitted), and Smith therefore is not entitled to federal

habeas relief on this claim, see 28 U.S.C. § 2254(d)(1).


                                          3
      Smith also alleges that during closing argument the prosecutor misstated the

law regarding the lesser-included offense of voluntary manslaughter, and that this

misstatement rendered the trial fundamentally unfair. The Supreme Court has

cautioned that “a criminal conviction is not to be lightly overturned on the basis of

a prosecutor’s comments standing alone, for the statements or conduct must be

viewed in context; only by so doing can it be determined whether the prosecutor’s

conduct affected the fairness of the trial.” United States v. Young, 470 U.S. 1, 11

(1985). Assessing the statement in context, it is clear that the prosecutor in

Smith’s case did not misstate the law in closing argument but rather restated

relevant jury instructions and applied those instructions to the facts in evidence.

The Nevada Supreme Court did not unreasonably apply established federal law, 28

U.S.C. § 2254(d)(1), in concluding that the prosecutor’s closing argument did not

“so infect[] the trial with unfairness as to make the resulting conviction a denial of

due process,” Jones v. Ryan, 691 F.3d 1093, 1102 (9th Cir. 2012) (quoting

Darden, 477 U.S. at 181). Smith is not entitled to federal habeas relief on this

claim. See 28 U.S.C. § 2254(d)(1).

                                           II

      Smith next argues that he received ineffective assistance of counsel because

his trial attorney failed to properly investigate the case, present exculpatory


                                           4
witnesses, and object to inadmissible testimony. To prove ineffective assistance of

counsel, Smith must make two showings: first, that his attorney’s performance was

deficient, and second, that his attorney’s deficient performance prejudiced his

defense. The former “requires showing that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment,” and the latter “requires showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial, a trial whose result is reliable.”

Strickland v. Washington, 466 U.S. 668, 687 (1984). When assessing a Strickland

claim, courts “must indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.” Id. at 689 (internal quotations

and citation omitted).

       Smith has shown neither deficiency on the part of his attorney nor resulting

prejudice. First, his attorney cross examined witnesses at trial regarding the

information Smith faults him for not having investigated, so it is unclear what

more the requested investigation would have yielded. Second, his attorney decided

not to call witnesses whose testimony would have conflicted with Smith’s chief

defense that someone named Mario Sanchez was in fact the shooter. This was


                                             5
likely a sound trial strategy. Third, while Smith’s attorney did not object to an

arguably improper question posed to a witness, the attorney elicited an admission

on cross examination of the witness that her prior testimony was not accurate. If

the failure to object was indeed deficient, no prejudice resulted. Therefore, the

Nevada Supreme Court did not unreasonably apply established federal law in

denying Smith’s claim for ineffective assistance of trial counsel, and Smith is not

entitled to federal habeas relief on this claim. 28 U.S.C. § 2254(d)(1).

                                          III

      Finally, we decline to expand the certificate of appealability to encompass

Smith’s six uncertified issues because no “substantial showing of the denial of a

constitutional right” has been made with respect to these claims. 28 U.S.C. §

2253(c)(2). Smith raised all six of these issues before the district court, and the

court dismissed three of the issues on procedural grounds and denied the remaining

three on the merits. The district court’s adjudication of these claims is not subject

to reasonable debate and the issues presented were not “adequate to deserve

encouragement to proceed further.” Shackleford v. Hubbard, 234 F.3d 1072, 1081

(9th Cir. 2000) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal

quotation marks omitted)).

      AFFIRMED.


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