                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 27 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



SHABONDY SIMPSON,                                No. 09-16902

              Petitioner - Appellant,            D.C. No. 2:05-cv-0640-JAM-DAD

  v.
                                                 MEMORANDUM *
M. EVANS, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for Eastern California, Sacramento
                     John A. Mendez, District Judge, Presiding

                        Argued and Submitted May 10, 2011
                             San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
      Because the parties are familiar with the factual and procedural history of

this case, we do not recount facts except as necessary to explain the decision. We

have jurisdiction under 28 U.S.C. § 2253. We affirm the district court’s denial of

appellant’s petition for habeas corpus.

      In his petition, Simpson argues that his habeas petition should be granted

because: (1) his right to due process was violated by the introduction of perjured

testimony at trial; (2) his Sixth and Fourteenth Amendment rights were violated by

the trial court’s denial of motion for a new trial; (3) he received ineffective

assistance of counsel; (4) the denial of continuances to secure the attendance of

defense witness Nineveh Wells violated his due process rights; and (5) the district

court’s failure to hold an evidentiary hearing also violated his due process rights.

      Simpson’s final two claims on which he bases his habeas petition were not

certified as issues for appeal. Thus, we consider those issues as motions to expand

the certificate of appeal. 9th Cir. R. 22-1(e). Simpson fails to show, however, how

the facts demonstrate that he suffered a constitutional violation based on either of

these counts. Thus, we deny his motion to expand the certificate of appeal on both

issues.

      Simpson first claims that the state court’s introduction of perjured testimony

from the victim, Nikia Cole (“Cole”), violated his due process rights. While it is



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true that Cole’s testimony at trial contradicted statements she made during

preliminary hearings and in letters she wrote to the police, these discrepancies were

explored during cross-examination. The jury was aware that Cole’s testimony had

changed over time and could have discounted her credibility during trial. Thus, the

state court was not objectively unreasonable in admitting Cole's testimony, which

did not violate Simpson’s due process rights. See Jackson v. Brown, 513 F.3d

1057, 1071–72 (9th Cir. 2008).

      Simpson also claims the state court’s denial of his new trial motion was a

constitutional violation and that the state court’s failure to properly consider the

newly discovered evidence of Teaya Garcia’s (“Garcia”) testimony at the motion

for new trial hearing was a violation of his due process rights. The record indicates,

however, that Garcia testified before the state court judge, and he concluded that

her testimony was not credible enough to have caused a different outcome at trial.

The state court did not unreasonably apply federal constitutional law as this is the

only consideration federal law requires. See Quigg v.Crist, 616 F.2d 1107, 1112

(9th Cir. 1980) (“The mere existence of newly-discovered evidence does not

constitute grounds for federal habeas corpus relief unless the evidence bears upon

the constitutionality of the petitioner’s detention.”) (citing Townsend v. Sain, 372




                                           -3-
U.S. 293, 317 (1963)). Thus, Simpson suffered no constitutional violation on this

ground.

       Finally, Simpson claims he received ineffective assistance of counsel, a

violation of his Sixth Amendment rights. When a convicted defendant complains

of the ineffectiveness of counsel’s assistance, the defendant must show that: (1)

counsel’s representation fell below an objective standard of reasonableness; and (2)

that such ineffectiveness had an effect on the judgment received. Strickland v.

Washington, 466 U.S. 668, 88–91 (1984). Simpson has failed to demonstrate,

however, that his counsel’s assistance was unreasonable. He claims only that his

counsel did not base his appeal on the trial court’s ruling on the discovery of new

testimony from Garcia. The state court judge considered this testimony when

denying the new trial motion, so it was not unreasonable for Simpson’s counsel to

conclude that this was not a sound basis for his appeal. Simpson, therefore, has

failed to fulfill the first prong of the Strickland test, and his habeas petition also

fails on this ground.

       Because Simpson has not shown that he has suffered any constitutional

violations, we affirm the district court’s denial of his petition for writ of habeas

corpus.

       AFFIRMED.



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