                                                                              FILED
                           NOT FOR PUBLICATION                                 FEB 23 2011

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


GLENFORD EDWARD ENNIS,                           No. 09-16762

              Petitioner - Appellant,            D.C. No. 2:06-cv-01271-KJD-PAL

  v.
                                                 MEMORANDUM*
DWIGHT NEVEN and GEORGE
CHANOS,

              Respondents - Appellees.


                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                          Submitted February 18, 2011**
                            San Francisco, California

Before: TALLMAN and CALLAHAN, Circuit Judges, and CONLON, District
Judge.***




        *
             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. P. 34(a)(2).
        ***
            The Honorable Suzanne B. Conlon, United States District Judge for
the Northern District of Illinois, sitting by designation.
      Petitioner Glenford Ennis appeals from the U.S. District Court for the

District of Nevada’s dismissal of his habeas petition challenging his state

conviction for second degree murder with use of a deadly weapon, attempted

murder, and coercion.1 On the issue certified for appeal, Ennis claims that his trial

counsel was ineffective because he (1) failed to object to inadmissible hearsay, (2)

failed to investigate and call his supervisor as a witness regarding his history of

work absence and domestic disputes, and (3) failed to object to comments made by

the prosecutor during closing argument.2 We affirm in all respects.

      This petition is reviewed under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), which provides that the court may grant habeas

relief only if: the state court’s decision (1) “was contrary to, or involved an

unreasonable application of, clearly established federal law, as determined by the

Supreme Court;” or (2) “was based on an unreasonable determination of the facts

in light of the evidence presented.” 28 U.S.C. § 2254(d)(1)-(2). The district




      1
             The parties are familiar with the facts of this case and we repeat them
here only as necessary.
      2
              Although Ennis contends that all eight of the grounds he raised in his
habeas petition are subject to review by this court, the district court certified only
his claim of ineffective assistance of counsel regarding these three issues.

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court’s denial of a habeas petition is reviewed de novo. Carter v. Scribner, No. 09-

17869, 2011 WL 219525 *1 (9th Cir. Jan. 24, 2011).

      Claims for ineffective assistance of counsel are evaluated under the standard

set forth by the Supreme Court in Strickland v. Washington, 466 U.S. 668, 691-94

(1984). Under Strickland, for counsel’s assistance to be deemed ineffective the

petitioner must prove that the counsel’s representation was deficient, or fell below

an objective standard of reasonableness, and that the “deficient performance

prejudiced the defense.” Id. at 687. This is a highly deferential standard and there

is a strong presumption that counsel performed reasonably. Id. at 689.

      First, Ennis contends that he was prejudiced by his counsel’s ineffective

assistance because his counsel failed to object to two instances of inadmissible

hearsay. He first challenges the victim’s aunt’s testimony that while she was

talking to her mother on the phone the mother told her “to call the police because

she said Glen [Ennis] was there jumping on [Michelle].” The second statement

that Ennis challenges is Michelle’s grandmother’s testimony that on the day of the

murder Michelle called to her from a different room in the house, saying “Mama

Glen [Ennis] is in here.”

      The Nevada Supreme Court found that counsel had not been ineffective.

Counsel had objected to the first statement, but the trial court had allowed it after


                                           3
the prosecution satisfied the court’s foundational concern. The state court found

that the second statement was admissible as an excited utterance. The Nevada

Supreme Court further found that the alleged failures were not prejudicial to Ennis

because their only effect was to place him at the crime scene, which Ennis had

done himself by admitting to killing the victim.

      We find that the Nevada Supreme Court properly applied the Strickland

standard, see 466 U.S. at 691-94, and that its determinations of fact are not

unreasonable. 28 U.S.C. § 2254(d)(2).

      Second, Ennis contends that his counsel was ineffective by not calling his

supervisor as a witness to talk about his history of work absences and domestic

disputes. “Trial counsel’s duty to investigate . . . ‘does not necessarily require that

every conceivable witness be interviewed.’” Crittenden v. Ayers, 624 F.3d 943,

967 (9th Cir. 2010) (quoting Hendricks v. Calderon, 70 F.3d 1032, 1040 (1995)).

Ennis has not specified what information the supervisor could have provided to

refute any of the charges against him. Furthermore, Ennis testified at trial, so he

could have addressed both his domestic disputes as well as his history of work

absences. On this record, Ennis has failed to show any prejudice from his

counsel’s failure to call his supervisor. Under the deferential standards of review




                                           4
articulated in AEDPA and Strickland, we are compelled to affirm the lower court’s

denial of this claim. 28 U.S.C. § 2254(d)(1); Strickland, 466 U.S. at 691-94.

      Third, Ennis contends that his counsel was ineffective by failing to object to

two comments made by the prosecutor during closing argument. First, he contends

that the prosecutor’s comment that “the fact that [the officer] did not believe [the

victim] . . . does not make that allegation false,” was improper vouching. A

prosecutor can comment on a witness’s credibility as long as it does not amount to

personal vouching. United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir.

1993) (vouching is improper when counsel gives the jury personal assurances that

the witness is credible). An improper statement made at closing argument,

however, constitutes prosecutorial misconduct warranting reversal if the court

concludes that “any reasonable jurist could find that [the statements] had [a]

substantial and injurious effect or influence in determining the jury’s verdict.”

Turner v. Calderon, 281 F.3d 851, 868 (9th Cir. 2002). Here, the comment was

not a personal assurance of the victim’s credibility, and thus, does not amount to

personal vouching. Necoechea, 986 F.2d at 1276. Because the statement was not

improper, Ennis’s counsel did not fall below an objective standard of

reasonableness by not objecting to the statement. Strickland, 466 U.S. at 688.




                                          5
      Ennis also challenges the prosecutor’s comments concerning Ennis’s

thought process during his attack on Michelle on February 18, 2001. The record

reflects that the prosecutor’s comments were a fair supposition based on the

evidence of Ennis’s actions and statements. Furthermore, Ennis’s counsel did

object to the prosecutor’s comments and was overruled. Accordingly, Ennis’s

counsel was not deficient in performing his duties. Id.

      Because Ennis has failed to show any individual act of ineffective assistance

of counsel, we reject Ennis’s contention that there was cumulative error.

      We decline to certify the uncertified issues because Ennis’s contentions lack

sufficient merit to warrant review. Valerio v. Crawford, 306 F.3d 742, 767 (9th

Cir. 2002) (citing 28 U.S.C. § 2253(c)(2)) (we may grant a petitioner’s request for

an expanded certificate of appealability when the petitioner has made “a substantial

showing of the denial of a constitutional right”).

      The district court’s denial of Ennis’s petition is AFFIRMED.




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