                                                                             FILED
                           NOT FOR PUBLICATION                               FEB 25 2016

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



                            FOR THE NINTH CIRCUIT


ROBERT HAYDEN NESBITT, Jr.,                      No. 13-15354

              Petitioner - Appellant,            D.C. No. 2:09-cv-02821-GEB-
                                                 GGH
 v.

FRANCISCO JACQUEZ, Warden,                       MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Garland E. Burrell, Jr., Senior District Judge, Presiding

                      Argued and Submitted February 9, 2016
                            San Francisco, California

Before: THOMAS, Chief Judge and SCHROEDER and NGUYEN, Circuit Judges.

      Robert Hayden Nesbitt, Jr. appeals the district court’s denial of his habeas

petition brought under 28 U.S.C. § 2254. We have jurisdiction pursuant to

28 U.S.C. § 2253, and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

habeas relief is only available if a state court’s ruling was “contrary to, or involved

an unreasonable application of,” Supreme Court law that was “clearly established”

at the time the state court adjudicated the claim on the merits. 28 U.S.C.

§ 2254(d)(1); Greene v. Fisher, 132 S.Ct. 38, 43-44 (2011).

      The California Court of Appeal’s denial of Nesbitt’s due process claim was

not unreasonable or contrary to federal law. First, Nesbitt’s claim that the trial

court erred by taking judicial notice of a probation report from his juvenile case

file was procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 729

(1991). This court has held that California consistently applies its

contemporaneous objection rule when a party fails to object to the admission of

evidence, making it an independent and adequate state ground. Fairbank v. Ayers,

650 F.3d 1243, 1256 (9th Cir. 2011). Second, even if Nesbitt had timely objected,

the California Court of Appeal was not unreasonable in determining that he could

not establish prejudice because the trial court did not clearly rely on the contents of

the report.

      We decline to expand the certificate of appealability to encompass Nesbitt’s

uncertified ineffective assistance of counsel claim because no “substantial showing

of the denial of a constitutional right” has been made with respect to this claim. 28


                                           2
U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483–85 (2000). Given

the nature of the charged offenses and the seriousness of his criminal history,

Nesbitt cannot demonstrate that any alleged ineffective assistance resulted in

prejudice.1 See Strickland v. Washington, 466 U.S. 668, 694 (1984).

      AFFIRMED.




      1
          Appellant’s Request for Judicial Notice is DENIED.

                                          3
