                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 10 2015

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



                            FOR THE NINTH CIRCUIT


ANTHONY PRENTICE,                                No. 14-16766

              Petitioner - Appellant,            D.C. No. 3:10-cv-00743-RCJ-VPC

 v.
                                                 MEMORANDUM *
RENEE BAKER; NEVADA ATTORNEY
GENERAL,

              Respondents - Appellees.


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

                      Argued and Submitted October 21, 2015
                            San Francisco, California

Before: SILVERMAN and CHRISTEN, Circuit Judges, and DUFFY,** District
Judge.

      Anthony Prentice appeals the district court’s denial of his petition pursuant

to 28 U.S.C. § 2254. In his petition, Prentice argued that he was deprived of


       *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

       **
           The Honorable Kevin Thomas Duffy, District Judge for the U.S. District
Court for the Southern District of New York, sitting by designation.
effective assistance of counsel because his counsel did not move to suppress his

statements to police pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). We

have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

      We review de novo the district court’s denial of Prentice’s habeas petition.

See Dyer v. Hornbeck, 706 F.3d 1134, 1137 (9th Cir. 2013). Under the

Antiterrorism and Effective Death Penalty Act of 1996, we may not grant relief

unless Prentice shows that “the earlier state court’s decision ‘was contrary to’

federal law then clearly established in the holdings of [the Supreme] Court; or that

it ‘involved an unreasonable application of’ such law; or that it ‘was based on an

unreasonable determination of the facts’ in light of the record before the state

court.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (quoting 28 U.S.C. §

2254(d)) (citation omitted).

      Prentice has not shown that the state court unreasonably applied Strickland

v. Washington, 466 U.S. 668 (1984). In order to show ineffective assistance of

counsel, Prentice must show: (1) that his counsel’s representation fell below an

objective standard of professionally reasonable conduct; and (2) that a “reasonable

probability” exists that the deficient performance affected the outcome of his trial.

Id. at 687-89, 694. Even assuming that Prentice’s counsel performed deficiently (a

question we need not and do not reach), the state court’s conclusion that Prentice

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failed to show prejudice was not objectively unreasonable. See id. at 697. The

statements at issue were not highly damaging or greatly inconsistent with

Prentice’s trial defense, and the other evidence of Prentice’s guilt was strong,

especially Ashley Ratelle’s testimony that Prentice planned the murder and

provided weapons. Therefore, Prentice cannot show a reasonable probability that

the result of his trial would have been different had counsel successfully

suppressed Prentice’s statements. Nor was the state court’s decision based on an

unreasonable determination of the facts. See Wood v. Allen, 558 U.S. 290, 301

(2010). Accordingly, we affirm the district court’s denial of Prentice’s petition.1

      We construe Prentice’s additional arguments as a motion to expand the

certificate of appealability. See 9th Cir. R. 22-1(e). So construed, the motion is

denied because Prentice has not made a “substantial showing of the denial of a

constitutional right.” Hiivala v. Wood, 195 F.3d 1098, 1104 (9th Cir. 1999) (per

curiam) (quoting 28 U.S.C. § 2253(c)(2)).

      AFFIRMED.




      1
        Because we deny Prentice’s claim on the merits, we do not reach the
question of whether his claim was exhausted, see 28 U.S.C. § 2254(b)(2), and
Prentice is not entitled to a remand to the district court for an evidentiary hearing,
see Cullen v. Pinholster, 563 U.S. 170, 203 n.20 (2011).

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