                                                                            FILED
                            NOT FOR PUBLICATION                              APR 27 2012

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




                            FOR THE NINTH CIRCUIT



STEVEN F. SHERER,                                 No. 09-35934

              Petitioner - Appellant,             D.C. No. 2:06-cv-01635-RSM

  v.
                                                  MEMORANDUM *
STEPHEN SINCLAIR,

              Respondent - Appellee.



                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                        Argued and Submitted April 9, 2012
                               Seattle, Washington

Before:       HUG, TASHIMA, and CALLAHAN, Circuit Judges.

       Petitioner-Appellant Steven Sherer appeals the district court’s denial of his

28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction of first

degree murder. He contends that there was insufficient evidence to convict him,

his trial counsel’s performance fell below the level required under Strickland v.



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Washington, 466 U.S. 668 (1984), and the government suppressed exculpatory

evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963).1 The facts

underlying this appeal are known to the parties and need not be repeated here. We

have jurisdiction under 28 U.S.C. § 2253, and we affirm the district court’s denial

of the petition.

       Contrary to Sherer’s contention, the record reflects that the state courts’

decisions rejecting Sherer’s sufficiency of the evidence and ineffective assistance

of counsel claims were not contrary to, or an unreasonable application of, clearly

established Federal law. See 28 U.S.C. § 2254(d)(1); Boyer v. Belleque, 659 F.3d

957, 964-65 (9th Cir. 2011); Harrington v. Richter, ––– U.S. ––––, 131 S. Ct. 770,

788 (2011). Nor were those decisions based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceedings. See 28

U.S.C. § 2254(d)(2).

       Sherer’s Brady claim fails as well. Even assuming arguendo that de novo

review applies, given the strength of the evidence against petitioner versus the



       1
             Sherer raises an uncertified issue in his opening brief. We construe
Sherer’s additional arguments as a motion to expand the certificate of
appealability. So construed, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala
v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).



                                           2
relative weakness of the dog tracking evidence, petitioner has not demonstrated a

reasonable probability that disclosure of the allegedly suppressed dog tracking

report would have produced a different result. See Strickler v. Greene, 527 U.S.

263, 281-82, 289 (1999).

      AFFIRMED.




                                         3
