                            NOT FOR PUBLICATION                          FILED
                                                                          JUL 18 2018
                     UNITED STATES COURT OF APPEALS
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT


NATHAN SMITH, III,                               No. 16-56195

              Petitioner-Appellant,              D.C. No. 13-cv-102-JAH-KSC

   v.
                                                 MEMORANDUM *
SHERRY PENNYWELL and
P.L. VASQUEZ,

              Respondents-Appellees.


                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                     Argued and Submitted March 5, 2018
                            Pasadena, California
                  **
Before: THOMAS, Chief Judge, NGUYEN, Circuit Judge, and SETTLE,
District Judge***


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             This case was submitted to a panel that included Judge Reinhardt.
Following Judge Reinhardt’s passing, Chief Judge Thomas was drawn by lot to
replace him. 9th Cir. Gen. Order 3.2.h. Chief Judge Thomas has read the briefs,
reviewed the record, and listened to oral argument.
        ***
            The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
                                          1
      Petitioner-Appellant Nathan Smith, III (“Smith”) appeals the denial of his

petition for writ of habeas corpus seeking relief from a jury conviction in state

court. Specifically, he argues that he received ineffective assistance of counsel and

cumulative trial errors deprived him of a fair trial. We review de novo a district

court’s decision on a petition for writ of habeas corpus. Hall v. Haws, 861 F.3d

977, 988 (9th Cir. 2017). We have jurisdiction pursuant to 28 U.S.C. § 2253, and

we affirm.1

      1. Smith’s first claim for relief is that his trial counsel was ineffective

because he failed to offer impeachment evidence from Smith’s co-defendant, Nina

Ortiz (“Ortiz”). The California Court of Appeal (“CCA”) denied this claim,

concluding that counsel’s decision fell within the wide range of reasonable

professional assistance. Deficient performance requires a showing that counsel’s

performance “fell below an objective standard of reasonableness” at the time of the

trial. Strickland v. Washington, 466 U.S. 668, 688 (1984). Defense counsel is

“strongly presumed to have rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment.” Id. at 690. On

federal habeas review, the “pivotal question is whether the state court’s application

of the Strickland standard was unreasonable.” Harrington v. Richter, 562 U.S. 86,




      1
          We deny Smith’s motion to reargue.

                                           2
101 (2011). Smith fails to show that the CCA’s conclusion is objectively

unreasonable because Ortiz’s testimony was undermined by her pretrial guilty plea.

During trial, Smith’s counsel was forced to weigh the probative value of Ortiz

denying any involvement in the crime against the prejudicial nature of her

subsequent plea to committing the crime. It is not objectively unreasonable to

conclude that counsel made a tactical decision not to offer Ortiz’s testimony.

Therefore, the district court’s denial of this claim is affirmed.

      2. Smith’s second claim for relief is that his trial counsel was ineffective for

failing to offer other impeachment evidence. Smith first argues that this claim

should be reviewed de novo because the CCA seriously mischaracterized key

evidence that supported Smith’s claim. According to an investigating officer’s

report, victim Prado Pacheco (“Pacheco”) exited his car and stated “Let’s go”

before the assaults began. The CCA found that Pacheco was referring to his family

leaving the scene instead of indicating a willingness to fight.

      “[A] federal court may not second-guess a state court’s fact-finding process

unless, after review of the state-court record, it determines that the state court was

not merely wrong, but actually unreasonable.” Taylor v. Maddox, 366 F.3d 992,

999 (9th Cir. 2004), overruled on other grounds by Murray v. Schriro, 745 F.3d

984, 999–1000 (9th Cir. 2014). “[W]e must be convinced that an appellate panel,

applying the normal standards of appellate review, could not reasonably conclude


                                           3
that the finding is supported by the record.” Id. at 1000. “This is a daunting

standard—one that will be satisfied in relatively few cases.” Id.

      In this case, Smith has failed to establish that the CCA’s fact-finding process

was defective. Although Smith offers a rational interpretation of Pacheco’s

statement, Smith fails to show that the CCA’s finding is not supported by the

record. At most, Smith has shown that the CCA’s finding is possibly wrong and

has failed to meet the “daunting standard” that the finding is “actually

unreasonable.” Id. at 999–1000. Therefore, Smith is not entitled to de novo review.

      Under the deferential standard of review, Smith has failed to show that the

CCA’s “application of the Strickland standard was unreasonable.” Richter, 562

U.S. at 101. Although Smith has identified numerous pieces of evidence that his

counsel could have offered to impeach the state’s witnesses, the CCA concluded

that Smith’s counsel made reasonable decisions to not offer the evidence and that

any error resulting from counsel’s failure to offer the evidence was not prejudicial.

Upon review of each individual alleged error, Smith fails to establish a CCA

conclusion that is “so lacking in justification that there was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Richter, 562 U.S. at 103. Therefore, the district court’s

denial of this claim is affirmed.




                                           4
      3. Smith’s final claim for relief is that the cumulative errors of his counsel

denied him a fair trial and that these errors, in addition to the trial court’s erroneous

admission of prejudicial evidence, also deprived him of a fair trial. “The Supreme

Court has clearly established that the combined effect of multiple trial court errors

violates due process where it renders the resulting criminal trial fundamentally

unfair.” Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v.

Mississippi, 410 U.S. 284, 298 (1973)). We have “granted habeas relief under the

cumulative effects doctrine when there is a ‘unique symmetry’ of otherwise

harmless errors, such that they amplify each other in relation to a key contested

issue in the case.” Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011)

(quoting Parle, 505 F.3d at 933). Although Smith and the CCA have identified

several actual and potential errors in Smith’s trial, Smith has failed to establish a

unique symmetry of errors that amplify a key contested issue. Therefore, the

district court’s denial of this claim is affirmed.

      AFFIRMED.




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