                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 13 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID TIFFANY,                                  No.    19-15796

      Petitioner-Appellant,                     D.C. No.
                                                3:13-cv-00682-MMD-CBC
 v.

ROBERT LEGRAND, Warden;                         MEMORANDUM*
ATTORNEY GENERAL FOR THE
STATE OF NEVADA

      Respondents-Appellees.



                 On Appeal from the United States District Court
                           for the District of Nevada
                    Miranda M. Du, District Judge, Presiding


                           Submitted August 10, 2020**
                            San Francisco, California

Before: GRABER and BRESS, Circuit Judges, and DAWSON,*** District Judge.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Robert T. Dawson, United States District Judge for the
Western District of Arkansas, sitting by designation.
      David Tiffany appeals the district court’s denial of his petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254. Tiffany’s petition challenged his

convictions for lewdness with a child under the age of 14, sexual assault of a minor

under the age of 14, solicitation of a minor, and child abuse and neglect. The sole

basis of Tiffany’s appeal is whether his due process rights were violated when the

trial court denied his request for investigative funds. On direct appeal in the state

court system, the Nevada Supreme Court held that the trial court abused its

discretion in denying the funds, but it concluded the error was harmless beyond a

reasonable doubt. On habeas review, the district court held that the decision from

the Nevada Supreme Court was neither contrary to nor an unreasonable application

of clearly established federal law. See 28 U.S.C. § 2254(d)(1). We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.

      1. Tiffany argues that the trial court’s denial of investigative funds should

be deemed a structural error and, thus, that prejudice must be presumed. Tiffany

principally relies on Ake v. Oklahoma, 470 U.S. 68 (1985), to support this position.

The Constitution requires courts to ensure that indigent defendants have “a fair

opportunity to present [their] defense,” and the Supreme Court has held that

indigent defendants are entitled to psychiatric experts under some circumstances.

Id. at 76, 83. However, the Supreme Court has not determined whether indigent

defendants are entitled to non-psychiatric experts. See Caldwell v. Mississippi, 472


                                          2
U.S. 320, 323 n. 1 (1985) (leaving the question open as to “what if any showing”

would entitle an indigent defendant to non-psychiatric assistance as a matter of

federal constitutional law). Thus, the trial court’s denial of funds was neither

contrary to nor an unreasonable application of clearly established federal law. See

White v. Woodall, 572 U.S. 415, 426 (2014) (holding that 28 U.S.C. § 2254(d)(1)

“does not require state courts to extend [Supreme Court] precedent or license

federal courts to treat the failure to do so as error.” (emphasis in original)).

      2. Even if Ake extended beyond non-psychiatric assistance, there is no

clearly established Supreme Court authority to suggest that an Ake violation is

structural in nature. Indeed, there is a split of authority on the question of whether

an Ake violation constitutes a trial error subject to harmless error inquiry or a

structural error in which prejudice should be presumed. Compare McWilliams v.

Comm’r, Alabama Dep’t of Corr., 940 F.3d 1218, 1224–26 (11th Cir. 2019)

(holding that an Ake violation was structural error), with White v. Johnson, 153

F.3d 197, 201 (5th Cir. 1998) (holding that an Ake violation was subject to

harmless error analysis), Tuggle v. Netherland, 79 F.3d 1386, 1392–93 (4th Cir.

1996) (same), and Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995)

(same). Because there is no clearly established Supreme Court authority, we need

not resolve this issue and Tiffany is not entitled to relief on this basis.




                                            3
       3. Alternatively, Tiffany requests remand to the district court for an

evidentiary hearing on the issue of harmlessness. Habeas petitioners are not

entitled to relief unless they can establish that a trial error resulted in actual

prejudice. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (directing federal

courts on collateral review to determine whether a trial error had a “substantial and

injurious effect or influence on the jury’s verdict.” (internal quotations and citation

omitted)). During Tiffany’s trial, the government presented overwhelming

evidence of his guilt. And, on appeal, the record discloses no prejudice resulting

from the denial of investigative funds. Because there is no basis to conclude that

the denial of funds had a “substantial and injurious effect or influence in

determining the jury’s verdict,” id., remand is unnecessary.

       AFFIRMED.




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