                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        FEB 9 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

MICHAEL MAX MILLER,                             No.    16-36037

                Petitioner-Appellant,           D.C. No. 4:13-cv-00013-DWM

 v.
                                                MEMORANDUM*
LEROY KIRKEGARD and ATTORNEY
GENERAL FOR THE STATE OF
MONTANA,

                Respondents-Appellees.

                   Appeal from the United States District Court
                           for the District of Montana
                   Donald W. Molloy, District Judge, Presiding

                           Submitted February 7, 2018**
                              Seattle, Washington

Before: M. SMITH and MURGUIA, Circuit Judges, and ROBRENO,*** District
Judge.

      Petitioner-Appellant Michael Miller appeals the district court’s decision


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
denying his petition for a writ of habeas corpus. Reviewing de novo, we affirm. See

Sanders v. Ratelle, 21 F.3d 1446, 1451 (9th Cir. 1994).

      The district court certified one issue for appeal: Whether Miller’s trial

counsel was ineffective for failing to object to the prosecutor’s statements during

closing argument. “An ineffective assistance claim has two components.” Wiggins

v. Smith, 539 U.S. 510, 521 (2003). First, a “petitioner must show that counsel’s

performance was deficient.” Id. Second, the petitioner must show that the

“deficiency prejudiced the defense.” Id.

      Miller has failed to demonstrate that his trial counsel’s performance was

deficient or that his trial counsel’s purported deficiency prejudiced Miller. Miller

claims that his trial counsel failed to object to two separate statements by the

prosecutor during closing argument: the prosecutor’s statement that Miller lied,

and the prosecutor’s statement that the defense counsel’s closing argument

essentially presented a “recipe” for “how to commit murder and get away with it.”

Trial counsel’s failure to object to these statements does not rise to the level of

professional incompetence. See United States v. Molina, 934 F.2d 1440, 1448 (9th

Cir. 1991) (explaining that “[f]rom a strategic perspective, . . . many trial lawyers

refrain from objecting during closing argument to all but the most egregious

misstatements by opposing counsel on the theory that the jury may construe their

objections to be a sign of desperation or hyper-technicality”); see also Linebaugh


                                           2
v. Belleque, 385 F. App’x 751, 753 (9th Cir. 2010) (defense counsel not ineffective

for failing to object to prosecutor’s statements in closing argument about

credibility and inflammatory nature of victim’s brother’s testimony). Therefore,

Miller has not shown that his counsel’s performance was deficient or that his

counsel’s purported deficiency prejudiced him. See Strickland v. Washington, 466

U.S. 668, 687 (1984).

      Miller raises two other claims in his petition for which the district court

declined to issue certificates of appealability. Until a petitioner secures a certificate

of appealability from a circuit justice or judge, the “Court of Appeals may not rule

on the merits of [the] case.” Buck v. Davis, 137 S. Ct. 759, 773 (2017). At the

certificate of appealability stage, the court of appeals should limit its examination

to a “threshold inquiry into the underlying merit[s] of [the] claims,” asking “only if

the District Court’s decision was debatable.” Id. at 774 (alteration in original)

(quoting Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)).

      In his first uncertified claim, Miller asserts that his trial counsel was

ineffective for failing to call a pharmacology expert to impeach witness testimony.

The Ninth Circuit has found counsel to be ineffective when “an attorney neither

conducted a reasonable investigation nor demonstrated a strategic reason” for his

or her decision. Hendricks v. Calderon, 70 F.3d 1032, 1036 (9th Cir. 1995). Here,

Miller’s trial counsel not only conducted a reasonable investigation and consulted


                                            3
with a pharmacology expert, but also articulated a strategic reason for deciding not

to call the expert—namely, fear that an expert would draw unnecessary attention to

the witness’s testimony. Therefore, reasonable jurists would not debate the district

court’s decision to deny Miller’s uncertified ineffective assistance of counsel

claim, and the Court declines to issue a certificate of appealability on this claim.

See 28 U.S.C. § 2253(c)(2) (“A certificate of appealability may issue under

paragraph (1) only if the applicant has made a substantial showing of the denial of

a constitutional right”).

      In his second uncertified claim, Miller claims that his direct appeal counsel

was ineffective for failing to challenge the sufficiency of the evidence. However,

appellate attorneys are not required to raise every “colorable” claim suggested by

their clients. Jones v. Barnes, 463 U.S. 745, 753 (1983). Indeed, a “hallmark of

effective appellate counsel is the ability to weed out claims that have no likelihood

of success, instead of throwing in a kitchen sink full of arguments with the hope

that some argument will persuade the court.” Pollard v. White, 119 F.3d 1430,

1435 (9th Cir. 1997). Here, circumstantial evidence supported Miller’s conviction.

See Bashor v. Risley, 730 F.2d 1228, 1238–39 (9th Cir. 1984) (upholding a

conviction based on entirely circumstantial evidence). Therefore, reasonable jurists

would not debate the district court’s decision to deny Miller’s uncertified




                                           4
ineffective assistance of appellate counsel claim, and the Court declines to issue a

certificate of appealability on this claim. See 28 U.S.C. § 2253(c)(2).

      AFFIRMED.




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