                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                            FOR THE NINTH CIRCUIT                             JAN 06 2011

                                                                         MOLLY C. DWYER, CLERK
                                                                           U .S. C O U R T OF APPE ALS

BRYON GARNETT,                                    No. 09-17174

              Petitioner - Appellant,             D.C. No. 2:06-cv-00933-JCM-RJJ

  v.
                                                  MEMORANDUM *
DWIGHT NEVEN; STATE OF
NEVADA; ATTORNEY GENERAL OF
THE STATE OF NEVADA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                      Argued and Submitted December 7, 2010
                             San Francisco, California

Before: D.W. NELSON, THOMPSON, and McKEOWN, Circuit Judges.

       State prisoner Bryon Garnett appeals the district court’s denial of his petition

for a writ of habeas corpus. The district court found that two decisions of the

Nevada Supreme Court were not “contrary to” nor an “unreasonable application of,



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
clearly established Federal law, as determined by the Supreme Court of the United

States.” See 28 U.S.C. § 2254(d)(1). We affirm.1

      Garnett has not established that his trial attorney provided ineffective

assistance of counsel under the rule set forth in Strickland v. Washington, 466 U.S.

668, 687 (1984). In his closing argument, Garnett’s counsel drew attention to the

discrepancy between Garnett’s height and eyewitness accounts of the robber’s

height. That counsel did not call an expert to analyze the robber’s height using the

surveillance videotape does not render his performance deficient. See id. at 688.

Nor was counsel’s performance deficient for failure to call an eyewitness

identification expert, when counsel instead presented alibi witnesses and the

favorable eyewitness testimony of the Mendozas. See id. In addition, Garnett has

not established prejudice due to his trial attorney’s failure to conduct a reenactment

of the robbery. Garnett did not conduct a reenactment to show whether a person of



      1
          The district court certified three issues for appeal. We expand the
Certificate of Appealability to include one of two uncertified issues Garnett raises
in his opening brief. See 9th Cir. R. 22-1(e). “[J]urists of reason would find it
debatable” whether Garnett first argued in his amended habeas corpus petition that
his trial attorney was ineffective for failure to retain an eyewitness identification
expert. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We conclude Garnett
adequately raised this issue. As for the second uncertified issue, the Supreme
Court has not clearly established whether a freestanding claim of actual innocence
exists. Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308,
2321 (2009); see also 28 U.S.C. § 2254(d)(1).

                                           2
his height would have been unable to jump over the store counter, so it is not

possible to determine whether a reenactment might have altered the result of his

trial. See id. at 694.

       Garnett’s claim that the state violated Brady v. Maryland, 373 U.S. 83, 87

(1963), also fails. Even assuming the latent fingerprint reports were exculpatory,

the prosecutor’s failure to turn the reports over before the commencement of trial

did not prejudice Garnett’s case. Garnett’s attorney elicited testimony to the effect

that investigators had not matched Garnett’s fingerprints to prints taken from the

crime scene. He reiterated this during his closing argument. The relevant evidence

was before the jury.

       Finally, the evidence produced at trial was sufficient to support a finding of

guilt. Eyewitness Sylvanus Bradbury and off-duty clerk Janelle Goodnature

identified Garnett as the robber. A “rational trier of fact could have found proof of

guilt beyond a reasonable doubt” based upon these identifications. See Jackson v.

Virginia, 443 U.S. 307, 324 (1979).

       AFFIRMED.




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