                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 04 2011

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




                            FOR THE NINTH CIRCUIT



ELIZABETH ANN POWELL,                            No. 09-17576

              Petitioner - Appellant,            D.C. No. 2:06-cv-00371-RCJ-LRL

  v.
                                                 MEMORANDUM *
SHERMAN HATCHER and GEORGE
CHANOS,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                      Argued and Submitted December 8, 2010
                             San Francisco, California

Before: REINHARDT, HAWKINS, and N.R. SMITH, Circuit Judges.




       Elizabeth Ann Powell (“Powell”) petitions for review of the district court’s

denial of her petition for a writ of habeas corpus. She was convicted of first degree

murder and kidnapping with a deadly weapon, and sentenced by the Nevada trial


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court to two consecutive terms of life without the possibility of parole and to two

consecutive terms of life with the possibility of parole. The Nevada Supreme

Court upheld the conviction and the sentence. Powell’s claims on appeal are

governed by the Antiterrorism and Effective Death Penalty Act (“AEDPA”). 28

U.S.C. § 2254(d). Because none of Powell’s five claims warrants habeas relief

under AEDPA, we affirm.

      First, Powell challenges the plea agreement accepted by her co-defendant

Robert Burkman (“Burkman”). She argues that the agreement’s requirement that

Burkman testify consistently with his previous statements to police violated

Powell’s due process rights. This argument fails to demonstrate a conflict with, or

unreasonable application of, clearly established federal law. The constitutionality

of a plea agreement’s consistency clause, in the absence of evidence, not present

here, that previous statements to police were made under conditions that facilitate

perjurious testimony, “is an open question in the Supreme Court’s jurisprudence.”

Cook v. Shriro, 516 F.3d 802, 818 (9th Cir. 2008). Powell also objects to the facts

that the plea agreement did not contain a written warning that it would be void if

Burkman’s leniency-induced testimony was false, and that the trial court did not

give a specific cautionary instruction to the jury concerning accomplice testimony.

These challenges are, however, matters of state law, see Nev. Rev. Stat. §


                                          2
174.061(1)(b); Nev. Rev. Stat. § 175.282(2), that do not raise a federal question.

See United States v. Augenblick, 393 U.S. 348, 352 (1969); United States v. Ketola,

478 F.2d 64, 66 (9th Cir. 1973).

      Powell’s second claim is that the trial court erred in refusing to instruct the

jury on false imprisonment as a lesser included offense of first degree kidnapping.

This argument likewise “fails to present a federal constitutional question and will

not be considered in a federal habeas corpus proceeding.” James v. Reese, 546

F.2d 325, 327 (9th Cir. 1976); accord Beck v. Alabama, 447 U.S. 625, 638 n.14

(1980) (expressly declining to rule on whether the Constitution requires giving

instruction on lesser-included offenses in non-capital cases).

      Powell contends, third, that the trial court abused its discretion by admitting

graphic autopsy photographs of the victim’s bullet wounds. The admission of

these photographs was not arbitrary because the images provided evidence as to the

shooter’s handedness and because their admission was not so prejudicial as to have

rendered the trial fundamentally unfair. This claim does not constitute reversible

error under AEDPA. See Villafuerte v. Stewart, 111 F.3d 616, 627 (9th Cir. 1997).

      Fourth, Powell argues that the prosecutor committed misconduct during

closing argument by remarking that certain physical evidence placing her at the

crime scene was “uncontradicted,” and by addressing the evidence against her in


                                           3
terms of what he told the jury “I believe happened.” Powell’s first claim of

prosecutorial misconduct cannot succeed because the prosecutor’s comment was

an isolated reference to Powell’s silence that was not emphasized as a basis for

conviction and because Powell does not present evidence that could have

supported acquittal. See Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987).

Powell’s second claim of prosecutorial misconduct cannot succeed because she did

not show that the improper comments expressing the prosecutor’s personal

opinions about her guilt materially affected the verdict or denied her a fair trial.

See United States v. Younger, 398 F.3d 1179, 1191 (9th Cir. 2005).

      Finally, the Nevada Supreme Court was not objectively unreasonable in

rejecting Powell’s various claims of ineffective assistance against trial and

appellate counsel for failure to confront witnesses adequately, failure to

communicate effectively with Powell, failure to appeal an erroneous jury

instruction concerning a witness’s criminal record, failure to present mitigating

evidence at sentencing, and failure to object to instances of prior criminal conduct

and other bad acts. We do not address defense counsel’s deficient performance

because Powell does not demonstrate prejudice. See Strickland v. Washington, 466

U.S. 668, 694 (1984) (“The defendant must show that there is a reasonable

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


                                           4
proceeding would have been different. A reasonable probability is a probability

sufficient to undermine confidence in the outcome.”).

            AFFIRMED.




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