                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 10 2009

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




                            FOR THE NINTH CIRCUIT



MATTHEW JAMES KING,                               No. 08-17561

              Petitioner - Appellant,             D.C. No. 3:05-cv-00128-JCM-
                                                  VPC
  v.

E.K. MCDANIEL, Warden; NEVADA                     MEMORANDUM *
ATTORNEY GENERAL,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                      Argued and Submitted December 2, 2009
                             San Francisco, California

Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.

       Defendant Matthew James King appeals the district court’s order dismissing

his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We affirm. Because the

parties are familiar with the factual and procedural history of this case, we will not

recount it here.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                          I

      The district court correctly determined that any error under state law in

admitting Detective Sherwood’s statements on the cause of Hatsady’s injuries did

not rise to the level of a due process violation. To violate due process, wrongly

admitted evidence must be “so extremely unfair that its admission violates

fundamental conceptions of justice.” Dowling v. United States, 493 U.S. 342, 352

(1990) (quotation marks and citation omitted). Moreover, any error was harmless,

as defense counsel mitigated the effect of Sherwood’s testimony by securing an

admission on cross-examination that Hatsady’s injuries were also consistent with

having allergies, wearing contacts, and drinking alcohol. In addition, medical

record evidence submitted to the jury included a notation from Hatsady’s treating

physician Stephen Mussehl indicating that she suffered “acute . . . [a]sphyxiation.”

      We thus conclude that the Nevada Supreme Court’s rejection of King’s

claim was neither “contrary to,” nor “an unreasonable application of,” clearly

established Supreme Court law. 28 U.S.C. § 2254(d)(1).

                                         II

      The district court properly denied King’s challenge to the sufficiency of the

evidence sustaining his convictions. “A petitioner for a federal writ of habeas

corpus faces a heavy burden when challenging the sufficiency of the evidence used


                                         -2-
to obtain a state conviction on federal due process grounds.” Juan H. v. Allen, 408

F.3d 1262, 1274 (9th Cir. 2005). Sufficient evidence supports a conviction if,

viewing the evidence in the light most favorable to the prosecution, any rational

trier of fact could have found the essential elements of the crime beyond a

reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). “After

AEDPA, we apply the standards of Jackson with an additional layer of deference.”

Juan H., 408 F.3d at 1274.

      King argues that insufficient evidence established the specific-intent element

of attempted murder. However, Hatsady testified that King strangled her from

behind; that he continued to do so while she resisted, banging her head against the

floor and bed frame, and after she feigned death; and that she eventually lost

consciousness. Hatsady also testified that she awoke with a telephone cord tied

tightly around her neck. On this evidence, a rational trier of fact could have found

that King specifically intended to kill her beyond a reasonable doubt. Although

King challenges the credibility of Hatsady’s testimony, we must presume that the

jury resolved any conflicts in favor of the prosecution and defer to that resolution.

See McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994); see also Schlup v. Delo,

513 U.S. 298, 330 (1995) (recognizing that the credibility of witnesses is generally

beyond the scope of sufficiency of the evidence review).


                                          -3-
       King next challenges the sufficiency of the evidence to support his

kidnapping conviction. A rational juror could have found that the evidence

satisfied the elements of kidnapping under Nevada law beyond a reasonable doubt.

There was evidence that King moved Hatsady from the bedroom into the shower

and that she regained consciousness with a telephone cord wound tightly around

her neck and with handcuffs attached. See, e.g., Hutchins v. State, 867 P.2d 1136,

1140 (Nev. 1994) (upholding a kidnapping conviction for a robber who seized,

confined, and carried his victim from the living room of her apartment to the hall

area because “the forcible method used to relocate her to a secure setting for the

assault, coupled with the measures used to accomplish restraint, created a greater

risk of harm . . . .”).

       Finally, King challenges his convictions for robbery and grand theft auto on

the ground that insufficient evidence establishes that he took Hatsady’s property.

However, as the district court found, “[a] rational juror permissibly may infer from

the fact that both the assailant and the victim’s property are gone after the victim

regained consciousness that the assailant took the property from the unconscious

victim, particularly where, as here, the assailant and the victim were alone together

in the assailant’s motel room.” We agree, and affirm the district court’s denial of

habeas relief on this ground.


                                          -4-
                                           III

      King claims that he received ineffective assistance of counsel when his trial

attorneys failed to conduct forensic testing, call medical expert witnesses, and

investigate evidence pointing to another assailant. To make out a claim for

ineffective assistance, King must show that trial counsel’s performance: (1) fell

below an objective standard of reasonableness, and (2) prejudiced the outcome of

the trial. Strickland v. Washington, 466 U.S. 668 (1984). We affirm the district

court’s rejection of all three of King’s claims of ineffective assistance of trial

counsel.

      King alleges that his trial counsel performed deficiently by failing to obtain

forensic testing of: (1) a red-brown substance observed on a sock and near a light

switch, and (2) red hair found in a knotted telephone cord. However, defense

counsel repeatedly emphasized the State’s failure to link the evidence forensically

to Hatsady and thus did not perform ineffectively. Second, King does not support

his contention that the test results would likely have excluded Hatsady. Even if the

results did exclude Hatsady, they would have had minimal exculpatory value given

that the evidence came from a motel room with frequent guest turnover.

      King next asserts that defense counsel performed ineffectively in failing to

call Dr. Mussehl to testify that Hatsady’s injuries were consistent with King’s


                                           -5-
“rough sex” defense. The Nevada Supreme Court rejected this claim on post-

conviction review on the ground that it “is belied by the record,” and we agree.

Dr. Mussehl’s notes included a notation that Hatsady suffered “acute . . .

[a]sphyxiation.” Moreover, no prejudice resulted, as defense counsel highlighted

in his closing statement the inadequacy of Sherwood’s testimony, the content of

the medical reports, and the State’s failure to call any medical experts.

      Finally, King argues that defense counsel performed ineffectively by failing

to conduct an adequate investigation into the possibility of another assailant.

However, King’s story that he abandoned Hatsady after finding her unconscious

from drug use had already been discredited and his claim of another assailant

rested on pure speculation. The Nevada Supreme Court’s rejection of this claim

was thus neither contrary to, nor an unreasonable application of, the Strickland

standard.

                                          IV

      King contends that his appellate counsel performed ineffectively in failing to

object when the State “intentionally and deliberately failed to collect, preserve, and

disclose” four items of potentially exculpatory evidence. This claim also relies on

pure speculation, as King does not provide any support for the proposition that

forensic testing of the items would have likely exonerated him or identified a


                                          -6-
different assailant. Appellate counsel is not required to raise every non-frivolous

issue on appeal. Jones v. Barnes, 463 U.S. 745 (1983). Thus, the state court’s

decision rejecting this claim was not contrary to, or an unreasonable application of,

the Strickland standard.

                                          V

      King argues that cumulative error rendered his trial fundamentally unfair in

violation of due process. The Nevada Supreme Court dismissed this claim on the

rationale that all of King’s individual claims of error fail. We agree, and conclude

that King’s final claim does not provide a basis for federal habeas relief.

      AFFIRMED.




                                          -7-
