                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 24 2013

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




                            FOR THE NINTH CIRCUIT



FREE ODELL SMITH,                                 No. 10-17482

              Petitioner - Appellant,             DC No. 2:07 cv-1462 GEB

  v.
                                                  MEMORANDUM *
DERRAL G. ADAMS, Warden;
ATTORNEY GENERAL FOR THE
STATE OF CALIFORNIA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                      Argued and Submitted January 14, 2013
                            San Francisco, California

Before:       NOONAN, TASHIMA, and GRABER, Circuit Judges.

       Free Odell Smith appeals the district court’s denial of his petition for habeas

corpus relief pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
§§ 1291 and 2253. We review the district court’s denial of a habeas petition de

novo. DeWeaver v. Runnels, 556 F.3d 995, 997 (9th Cir. 2009). We affirm.

      1.     The California Court of Appeal reasonably concluded that Smith’s

Sixth Amendment rights were not violated by the trial court’s decision not to

appoint new counsel at the pre-trial Marsden hearing. See People v. Marsden, 465

P.2d 44 (Cal. 1970). The Sixth Amendment does not guarantee a criminal

defendant a “meaningful relationship” with his attorney. Morris v. Slappy, 461

U.S. 1, 13 (1983). Indeed, “no Supreme Court case has held that ‘the Sixth

Amendment is violated when a defendant is represented by a lawyer free of actual

conflicts of interest, but with whom the defendant refuses to cooperate because of

dislike or distrust.’” Larson v. Palmateer, 515 F.3d 1057, 1067 (9th Cir. 2008)

(quoting Plumlee v. Masto, 512 F.3d 1204, 1211 (9th Cir. 2008) (en banc)).

      Here, there is no allegation that trial counsel had an actual conflict of

interest. Rather, Smith’s poor relationship with trial counsel was attributable to

their differing opinions as to trial strategy and Smith’s subjective distrust, neither

of which is a suitable ground for habeas relief. See Plumlee, 512 F.3d at 1210-11.

The trial court also conducted a thorough inquiry into Smith’s claim of a conflict,

foreclosing the possibility of relief on this ground. See id. at 1211.




                                           -2-
      2.     The state Court of Appeal reasonably concluded that Smith’s Sixth

Amendment rights were not violated by the trial court’s decision not to appoint

new counsel, post-trial, to pursue a motion for a new trial. With respect to the

sufficiency of the inquiry conducted, the trial court afforded Smith the opportunity

to set forth the reasons why he believed new counsel (and a new trial) was

warranted. To the extent that Smith claimed a conflict with counsel, Smith did not

offer any evidence of the alleged conflict that had not been fully explored during

the pre-trial Marsden hearing.

      The allegations underlying Smith’s request for new counsel also did not, on

the merits, present a viable claim of ineffective assistance. The physical

description that the uncalled witness allegedly would have provided actually

matched Smith’s appearance a month following the shooting; therefore, that

witness’ testimony would only have harmed Smith’s case. As for the alleged

failure to reveal certain information concerning Scott Appleby, one of the State’s

witnesses, trial counsel had already impeached Appleby by introducing several of

his prior convictions at trial. The failure to take additional impeachment measures

did not present a colorable claim of deficient performance, or prejudice, under

Strickland v. Washington, 466 U.S. 668 (1984).




                                         -3-
      3.     The state Court of Appeal reasonably concluded that Smith’s rights

were not violated by the trial court’s refusal to grant a continuance at the

sentencing hearing. Trial courts are afforded broad discretion on matters of

continuances. Morris, 461 U.S. at 11. In assessing whether the denial of a

continuance was “so arbitrary as to violate due process,” we must look to the

circumstances of the given case, “particularly . . . the reasons presented to the trial

judge at the time the request [was] denied.” Ungar v. Sarafite, 376 U.S. 575, 589

(1964). Smith requested a continuance – on the day of his scheduled sentencing –

so that he could file a pro se motion for a new trial. But the trial court had already

heard, and appropriately rejected, the grounds for that motion.

      4.     There was no constitutional violation resulting from the trial court’s

response to the jury’s question on the difference between malice aforethought and

premeditation. A trial court enjoys “wide discretion” in responding to a question

from the jury. Arizona v. Johnson, 351 F.3d 988, 994 (9th Cir. 2003). Smith does

not suggest that the trial court’s brief explanations of malice aforethought and

premeditation were incorrect statements of the law, nor does Smith suggest that

there were any deficiencies in the underlying instructions to which the court

pointed the jury. Indeed, because the jury did not ask any followup questions, we

must presume that the jury understood the court’s response and appropriately


                                           -4-
applied the instructions referenced in that response. See Waddington v. Sarausad,

555 U.S. 179, 195-96 (2009) (citing Weeks v. Angelone, 528 U.S. 225, 234

(2000)).

      5.     The admission of testimony from one of the State’s witnesses

concerning a menacing T-shirt left on his car prior to trial did not “render[] the trial

so fundamentally unfair as to violate due process.” Randolph v. California, 380

F.3d 1133, 1147 (9th Cir. 2004) (internal quotation marks omitted). The testimony

implicated Smith only indirectly, if at all; further, before admitting the testimony,

the trial court gave a limiting instruction that the jury could consider the testimony

only for the purpose of evaluating the witness’ credibility. Juries are presumed to

follow such instructions. See Zafiro v. United States, 506 U.S. 534, 540 (1993).

      6.     The prosecutor’s comments on Smith’s failure to call his girlfriend

and Anthony Woods as witnesses did not violate the dictate of Griffin v.

California, 380 U.S. 609 (1965). “[A] prosecutor may properly comment upon a

defendant’s failure to present witnesses so long as it is not phrased to call attention

to [the] defendant’s own failure to testify.” United States v. Castillo, 866 F.2d

1071, 1083 (9th Cir. 1988) (internal quotation marks omitted); see also United

States v. Inzunza, 638 F.3d 1006, 1023 (9th Cir. 2011), cert. denied, 132 S. Ct. 997

(2012). Here, the prosecutor’s comments did not run afoul of this test. They in no


                                          -5-
way drew attention to Smith’s not testifying, but only spoke to the failure to

present two particular witnesses who could have exonerated Smith.

      7.     Smith is not entitled to relief on his claims of ineffective assistance of

trial counsel. The Sacramento County Superior Court reasonably concluded that

trial counsel was not ineffective in failing to call an expert witness. Smith merely

speculates as to the expert testimony that could have been produced, but

“[s]peculation about what an expert could have said is not enough to establish

prejudice.” Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997). The Superior

Court also reasonably concluded that Smith was not prejudiced by the failure to

call Anthony Woods as a witness. In several letters that Woods sent to Smith’s

state appellate counsel, Woods asserted that Scott Appleby had lied about who

picked up the shell casings following the shooting. Yet this testimony had already

been undermined at trial. Moreover, Woods’ letters never disputed the central fact

of the case – that Smith was the shooter – making it unlikely that his testimony

would have negated the strong evidence to this effect produced at trial. Finally,

Smith’s claim that trial counsel was ineffective for failing to give an opening

statement fails. This is the kind of decision that is “a mere matter of trial tactics.”

United States v. Rodriguez-Ramirez, 777 F.2d 454, 458 (9th Cir. 1985).




                                           -6-
      8.     The consecutive sentence that Smith received pursuant to Cal. Penal

Code §12022.53(d) did not violate the prohibition against double jeopardy. See

Plascencia v. Alameida, 467 F.3d 1190, 1204 (9th Cir. 2006).

      9.     Smith did not receive ineffective assistance of appellate counsel for

failure to raise various of his claims on direct appeal, because all of his claims are

without merit. See Wildman v. Johnson, 261 F.3d 832, 840 (9th Cir. 2001).

      The judgment of the district court is AFFIRMED.




                                          -7-
