                                                                               FILED
                            NOT FOR PUBLICATION                                 FEB 01 2012

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



                            FOR THE NINTH CIRCUIT


TONY M. SMITH                                     No. 09-16856

              Petitioner-Appellant,               D.C. No. 3:06-cv-00087-ECR-
                                                  VPC
  v.

E.K. MCDANIEL,
                                                  MEMORANDUM*
              Respondent-Appellee.


                   Appeal from the United States District Court
                            for the District of Nevada
                   Edward C. Reed, Junior, Senior District Judge

                     Argued and Submitted September 13, 2011
                             San Francisco, California

Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.**

       Nevada state prisoner, Tony M. Smith, appeals the district court’s denial of his

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

robbery, burglary, and conspiracy to commit robbery. We review de novo the district

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for the Northern District of Ohio, Cleveland, sitting by designation.
court’s denial of a state prisoner’s habeas petition. Barker v. Fleming, 423 F.3d 1085,

1091 (9th Cir. 2005). We affirm.

                                          I.

      Habeas corpus review of prosecutorial misconduct claims is limited to deciding

whether the alleged misconduct violated due process. Darden v. Wainwright, 477

U.S. 168, 181 (1986). The Supreme Court has stated that, in order “[t]o constitute a

due process violation, the prosecutorial misconduct must be of sufficient significance

to result in the denial of the defendant’s right to a fair trial.” Greer v. Miller, 483

U.S. 756, 765 (1987) (internal citation and quotation omitted). At trial, Petitioner

sought to demonstrate that the prison had a “turnaround” policy, which allowed

prisoners to move from one location to another only at designated times, and the

existence of that policy would have prevented him from being in the murder victim’s

unit at the time of the murder. Petitioner maintains that the prosecutor made

misleading statements about the prison’s turnaround policy which resulted in the

violation of his due process rights. The Nevada Supreme Court’s determination that

the prosecutor did not make misleading statements about the prison’s turnaround

policy, and thus did not violate his due process rights, was neither contrary to nor an

unreasonable application of clearly established federal law as determined by the

Supreme Court of the United States. Furthermore, that Court’s decision was not based


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

state court proceeding.

      Petitioner also maintains that the prosecutor made improper statements

regarding the Grand Jury testimony of deceased co-defendant, Richard Irvine, when

he stated that Irvine “testified about what these guys [Smith and Rowland] did and

didn’t do,” and that “he testified truthfully, he testified completely.” The Nevada

Supreme Court’s determination that the statements made by the prosecutor, though

improper, did not violate Petitioner’s due process rights, was neither contrary to nor

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

Supreme Court of the United States. Furthermore, that Court’s decision was not based

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

state court proceeding.

                                          II.

      Defendant argues that he was denied the effective assistance of trial counsel

when his counsel encouraged him to give his own opening statement. To prevail on

an ineffective assistance of counsel claim, a petitioner must show: (1) that counsel’s

performance was professionally unreasonable; and (2) that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding

would have been different. Strickland v. Washington, 466 U.S. 688, 694 (1984). The


                                         -3-
Nevada Supreme Court’s determination that Defendant failed to demonstrate that his

counsel’s conduct was professionally unreasonable or that it was prejudicial was not

contrary to or an unreasonable application of federal law as determined by the

Supreme Court of the United States.

      Smith’s claim that his trial counsel were ineffective in failing to move for a

mistrial, after learning that jurors had expressed fear for their safety shortly after

arriving at a verdict, is without merit. The Nevada Supreme Court’s determination

that Petitioner had not shown that his counsel’s conduct was prejudicial because he

failed to demonstrate that a motion for a mistrial had a reasonable likelihood of

success was neither contrary to nor an unreasonable application of clearly established

federal law as determined by the Supreme Court of the United States.

                                           III.

      Claims of ineffective assistance of appellate counsel are also reviewed pursuant

to the standard in Strickland. See Bailey v. Newland, 263 F.3d 1022, 1028 (9th Cir.

2001). Smith claims that his counsel were ineffective for failing to raise on direct

appeal that his trial counsel was ineffective for not moving for a mistrial after learning

that jurors had expressed fear for their safety is without merit for the same reasons

stated above regarding the failure of trial counsel to move for a mistrial.




                                           -4-
      Smith’s claim that his appellate counsel were also ineffective for failing to raise

as an issue on appeal that the district court improperly engaged in an ex parte (but on-

the-record) meeting with the jury is also without merit. After the ex parte

communication between the judge and the jury, the judge disclosed the juror note to

both parties and held a hearing in the presence of the attorneys for both parties.

Because the ex parte communication was not a violation of Smith’s constitutional

rights, appellate counsel were not required to raise this issue on appeal. See United

States v. Gagnon, 470 U.S. 522, 526 (1985). Therefore, the Nevada Supreme Court’s

determination that Petitioner failed to show that the ex parte communication by the

trial court with the jury was improper and that the issue on appeal had any likelihood

of success was neither contrary to nor an unreasonable application of clearly

established federal law as determined by the Supreme Court of the United States.

      Smith’s claim that his appellate counsel were ineffective for failing to raise as

an issue on appeal that Smith was not canvassed about the hazards of self-

representation by the court, prior to giving his own opening statement, is also without

merit. Smith was not acting pro se, and he was therefore not entitled to an explanation

by the trial court judge of the risks of self-representation. As Smith has not shown a

reasonable probability that he would have succeeded on receiving a Faretta canvas




                                          -5-
had his trial counsel asked for it, his appellate counsel was not ineffective for not

appealing this issue. Faretta v. California, 422 U.S. 806 (1975).

      Accordingly, the Nevada Supreme Court’s decision was neither contrary to nor

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

Supreme Court of the United States.

                                         IV.

      The Nevada Supreme Court addressed Smith’s arguments regarding the issue

of cumulative error and denied his claim on that ground, concluding that the issue of

innocence or guilt did not appear to be particularly close. Assuming, without

deciding, that the doctrine of cumulative error is applicable, we find that the Nevada

Supreme Court’s decision to reject this claim was neither contrary to nor an

unreasonable application of clearly established federal law as determined by the

Supreme Court of the United States.

      AFFIRMED.




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