                               NOT FOR PUBLICATION                       FILED
                        UNITED STATES COURT OF APPEALS                    NOV 9 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                               FOR THE NINTH CIRCUIT



 GARY MCKINLEY,                                    No.   15-17082

            Petitioner-Appellant,                  D.C. No.
                                                   2:12-cv-01090-APG-NJK
   v.

 ROBERT LEGRAND, Warden                            MEMORANDUM*

            Respondent-Appellee.

                       Appeal from the United States District Court
                                for the District of Nevada
                       Andrew P. Gordon, District Judge, Presiding

                               Submitted October 19, 2016**
                                 San Francisco, California

Before: GRABER and MURGUIA, Circuit Judges, and COLLINS,*** Chief
District Judge.




        *
             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 Raner C. Collins, United States Chief District Judge
for the District of Arizona, sitting by designation.
      Gary McKinley, a Nevada state prisoner, appeals from the district court’s

dismissal of his petition for a writ of habeas corpus. In his petition, McKinley

challenges his convictions for sexual assault. As the parties are familiar with the

facts, we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291.

We review the district court’s decision de novo, Lopez v. Thompson, 202 F.3d

1110, 1116 (9th Cir. 2000) (en banc), and we affirm.

      1.     McKinley first argues that his counsel was ineffective for not

appealing the Nevada state district court’s denial of the motion for new trial.

Assuming, without deciding, that clearly established federal law extends the right

to counsel to this context, the Nevada Supreme Court reasonably applied

Strickland v. Washington, 466 U.S. 668 (1984), in holding that “even if counsel’s

performance was deficient . . . it did not result in prejudice.” More specifically, it

was not “objectively unreasonable in light of the evidence presented in the state-

court proceeding,” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003), for the

Supreme Court of Nevada to conclude that no prejudice occurred because “the

foreperson did not intentionally conceal prejudicial information during voir dire.”

The testimony of her fellow jurors was not probative of the foreperson’s intent

during voir dire, and the foreperson herself stated that she did not recall the skating

                                           2
rink incident during jury selection. Moreover, the Nevada state district court

explicitly and favorably commented on the foreperson’s demeanor and testimony,

and we are particularly mindful that “determinations of demeanor and credibility . .

. are peculiarly within a trial judge’s province.” Wainwright v. Witt, 469 U.S. 412,

428 (1985). Accordingly, McKinley has not demonstrated an entitlement to federal

habeas relief on this ineffective assistance of counsel claim.

      2. McKinley also argues his counsel was ineffective for not insisting the

trial judge watch the pornographic video evidence before ruling on its

admissibility. On this issue, the Supreme Court of Nevada’s determination that

counsel’s performance was not deficient was not an objectionably unreasonable

application of Strickland, and thus does not warrant federal habeas relief; counsel

successfully limited admission of the videos to a summary of their content the

accuracy of which McKinley does not dispute. Although the trial court did not

preclude the video evidence entirely, counsel’s failure to secure preclusion to the

full extent requested does not constitute ineffective assistance of counsel. See

Strickland, 466 U.S. at 689.

3.    The motion to expand the COA is DENIED.

      The judgment of the district court is AFFIRMED.

                                          3
