                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            AUG 23 2018
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LANNY SMITH,                                     No.   16-35273*

              Petitioner-Appellant,              D.C. No. 4:08-cv-00227-EJL

 v.
                                                 MEMORANDUM**
LAWRENCE WASDEN and BRENT
REINKE,

              Respondents-Appellees.


                    Appeal from the United States District Court
                              for the District of Idaho
                     Edward J. Lodge, District Judge, Presiding

                    Argued and Submitted November 14, 2017
                            San Francisco, California




      *
             The initial number for this case was 12-35275. However, following a
remand by this court and a subsequent appeal, the case was mistakenly given a new
number: 16-35273. The initial case number should have remained with the case
during this subsequent appeal and we clarify this history here to avoid any
potential confusion.

      **     This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Before: N.R. SMITH,*** MURGUIA, and CHRISTEN, Circuit Judges.

      Petitioner-Appellant Lanny Smith appeals the district court’s denial of his 28

U.S.C. § 2254 habeas petition, which challenged his 1996 conviction for the first-

degree murder of Leo and Mary Downard. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253, and we affirm.

      1. Petitioner first argues trial counsel rendered ineffective assistance with

respect to Eric Greenwade’s testimony about shoeprint evidence. Even assuming

Petitioner could show cause and prejudice to excuse this claim’s procedural

default, this claim fails. Defense expert, Richard Fox, presented a “different

opinion” about the characteristics of the shoe that Greenwade compared with

corresponding “abnormalities” on the image; offered an alternate explanation for

the similarity between the bottom of the size 8 1/2 FootJoy and the dust-print

photograph; asserted that so much detail was lost in Greenwade’s adjusted

photograph that “we really can’t do a comparison”; opined that the “better” method

was to review the high-contrast photograph taken by the State; and asserted that

Fox “[did] not believe . . . [Greenwade is] qualified as a forensic footwear

examiner at all.” Fox also disputed Greenwade’s conclusion that the photograph


      ***
              Judge N.R. Smith was drawn to replace Judge Pregerson on the panel
following Judge Pregerson’s death. Judge Smith has read the briefs, reviewed the
record, and listened to the oral argument.
                                          2
showed an “identifying characteristic” of the particular shoe worn by the murderer,

and contested Greenwade’s view that the supposed abnormalities in the size 8 1/2

FootJoy corresponded to particular points in the photograph.

      Defense counsel also vigorously challenged Greenwade on his lack of

qualifications and experience with footprint identification, eliciting testimony that

Greenwade had no background or experience in footwear identification. Defense

counsel’s reliance on Fox’s testimony and cross-examination of Greenwade was

not outside the bounds of “reasonable professional judgment.” Strickland v.

Washington, 466 U.S. 668, 690 (1984). Petitioner has not shown that defense

counsel was deficient for failing to retain another shoe impression expert. See

Harrington v. Richter, 562 U.S. 86, 106–07 (2011) (highlighting the “wide latitude

counsel must have in making tactical decisions” and in formulating “a strategy . . .

[that] balance[s] limited resources in accord with effective trial tactics and

strategies” (citation and internal quotation marks omitted)).

      2. Petitioner also advances an ineffective assistance of counsel claim

concerning counsel’s failure to adequately investigate a variety of forensic

evidence. See 28 U.S.C. § 2253. Petitioner first asserts trial counsel was

ineffective by failing to test the shoes seized from Petitioner and Jeff Smith for

blood. But the State’s expert testified that no blood was found on either pair of


                                           3
shoes, and the decision to forgo further testing may have been tactical, since any

blood found on Petitioner’s shoes could have implicated him. See Jennings v.

Woodford, 290 F.3d 1006, 1014 (9th Cir. 2002) (counsel may choose not to

investigate, provided the decision is “reasonable and informed”).

      Petitioner argues trial counsel was deficient for failing to inquire into Fox’s

work in previous criminal cases. But defense counsel discussed the decision to

hire Fox with several attorneys, received a written recommendation from a

colleague, reviewed Fox’s curriculum vitae, and spoke with him about his

background. He also purchased several books on footprint and ballistics evidence

so he could be informed and have a meaningful interview with Fox. Counsel’s

decision to hire Fox was not constitutionally deficient.

      Petitioner asserts that counsel should have hired another expert to rebut

specific ballistics evidence. But Fox examined the casings and the Fieldmaster

rifle and agreed with the State’s experts’ conclusions. See, e.g., Winfield v. Roper,

460 F.3d 1026, 1041 (8th Cir. 2006) (“Counsel is not required to shop for experts

who will testify in a particular way, and . . . counsel’s decision not to investigate

the issue further was reasonable given the two concurring opinions of different

[experts].”). And as the district court concluded, the prosecutor’s inappropriate

conduct in asking Fox a question outside the scope of direct examination “shows


                                           4
neither that Fox was incompetent nor that his attorneys were ineffective,” because

“[n]either defense counsel nor his expert need anticipate bad behavior from the

prosecution.”

      Petitioner argues trial counsel’s failure to independently examine and test

other forensic evidence, such as hair, fiber, and semen, as well as sex crimes kits,

constitutes ineffective assistance. But the State’s experts did not testify that any of

this forensic evidence implicated Petitioner. Defense counsel had limited

resources at his disposal. Harrington, 562 U.S. at 107. Whether the hair and fiber

evidence would have exonerated Petitioner was speculative at best, and at worse

might have inculpated him.

      3. Petitioner raises a number of other claims asserting that his trial counsel

rendered deficient performance. None are meritorious. Concerning Beverly

Huffaker’s testimony, Petitioner has not shown that counsel’s decision to stipulate

to the admission of a receipt was constitutionally deficient. Furthermore, defense

counsel sought to soften the blow of Huffaker’s testimony by eliciting testimony

suggesting he was fond of “grandmother types” because they “accept[ed] him and

love[d] him for the way he is[.]” Counsel’s reliance on cross-examination to rebut

Huffaker’s testimony was not unreasonable.




                                           5
      4. Petitioner also asserts various due process claims. First, Petitioner argues

the trial court violated his right to due process under Daubert v. Merrell Dow

Pharmaceuticals, Inc., 509 U.S. 579 (1993), by permitting Greenwade to offer an

opinion that the size 8 1/2 FootJoy matched the adjusted image “extremely

closely,” This claim, however, was both procedurally defaulted and waived. Trial

counsel properly objected to Greenwade’s qualifications and testimony at trial, but

the issue was not raised on direct appeal, nor was his state petition for

postconviction relief ever amended to add a Daubert claim. Petitioner did not

provide the Idaho Supreme Court “the operative facts and the federal legal theory

on which his claim is based” sufficient to satisfy the exhaustion requirement,

Koerner v. Grigas, 328 F.3d 1039, 1046 (9th Cir. 2003) (citation and quotation

marks omitted), nor has Petitioner demonstrated that this default should be

excused.

      Petitioner also asserts the trial court’s exclusion of evidence of Jeff Smith’s

prior bad acts violated due process, but the trial court’s rulings did not render the

trial “fundamentally unfair in violation of due process.” Johnson v. Sublett, 63

F.3d 926, 930 (9th Cir. 1995). The trial court permitted defense counsel to ask

about specific instances of Jeff’s violent behavior to impeach his statement that he

had a “fair” reputation, and to support the theory that Jeff was the actual


                                           6
perpetrator. See Idaho R. Evid. 608(b). The court ultimately excluded extrinsic

evidence of Jeff’s violent character because it concluded that the proffered

evidence did not tie Jeff to the crime charged or the victims in the case, see Idaho

R. Evid. 608(b), but the court did not prohibit Petitioner from presenting a defense

in other ways (e.g., by cross-examining Jeff about the information contained within

police reports). The exclusion of some evidence of Jeff’s bad acts therefore did not

deprive Petitioner of a fair trial, nor were Idaho’s Rules of Evidence “arbitrary or

disproportionate to the purposes they are designed to serve” such that his right to

present a defense was abridged. United States v. Scheffer, 523 U.S. 303, 308

(1998) (citation and internal quotation marks omitted).

      Petitioner asserts that allowing James Swogger to testify violated due

process, but he cites no law supporting his argument that the district court violated

his constitutional rights by allowing a witness who equivocated on the stand. The

use of a jailhouse informant does not automatically render a trial unfair. See Hoffa

v. United States, 385 U.S. 293, 311–12 (1966).

      5. Petitioner raises several claims concerning the prosecution’s failure to

disclose exculpatory or impeaching information under Brady v. Maryland, 373

U.S. 83 (1963). He first asserts the prosecution’s failure to disclose chain of

custody information constituted a Brady violation. But he does not offer an


                                           7
affidavit from trial counsel or other evidence indicating that the chain-of-custody

record was not disclosed before trial, and trial counsel did not object to the State’s

assertion in its closing argument that there had “[n]ot [been] one mistake in the

chain of custody. Not one item lost in the chain of custody.” Petitioner argues

there were irregularities in Detective Rodriguez’s handling of the crime scene, and

asserts that several documents regarding the size of the shoes seized from Jeff

Smith’s apartment and those seized from Petitioner’s apartment were not disclosed

to trial counsel. But a different detective collected the shoes, realized he made an

error in his report, corrected it in a supplemental report, and testified at trial that

the shoes seized from Jeff Smith were a size 9 1/2. In light of this testimony, and

that of a defense witness who testified that Petitioner was aware that Petitioner’s

shoeprint had been found at the Downards’ home, we cannot conclude the

allegedly withheld evidence was material. Since Petitioner has not shown he

would have a “colorable or potentially meritorious Brady claim” if the allegedly

withheld information were considered, we decline to remand the claim to state

court. Gonzalez v. Wong, 667 F.3d 965, 980 (9th Cir. 2011).

       Federal habeas counsel asserts that documents available to the prosecution

detailing Jeff Smith’s prior bad acts were not disclosed to the defense, but does not

show which facts or incidents were unknown to trial counsel. Trial counsel cross-


                                             8
examined Jeff about specific instances of violent behavior and elicited an

admission that he had broken into and stolen things from his father’s home before.

Much of the allegedly suppressed material was cumulative of facts trial counsel

already knew.1 Even assuming the prosecution failed to disclose some evidence of

Jeff’s bad acts, we cannot conclude the additional evidence was material. United

States v. Sedaghaty, 728 F.3d 885, 900 (9th Cir. 2013).

      Petitioner’s Brady claims concerning the prosecution’s alleged failure to

disclose possible alternate perpetrators and its alleged failure to disclose Swogger’s

recantation also fail. The information about alternate perpetrators would not, if

disclosed, have undermined confidence in the fairness of the trial or the verdict.

Sedaghaty, 728 F.3d at 900. Swogger’s statement to federal habeas counsel was

unsworn; there is no corroborating evidence that Swogger initiated contact with the

police; Swogger acknowledged at trial that he wanted “a deal” in exchange for

testifying; and on cross-examination, the defense brought out Swogger’s letter to

Detective Rodriguez. In short, the defense thoroughly impeached Swogger’s



      1
              For instance, a General Offense Report from April 8, 1990 describing
an incident in which Robin Smith alleges Jeff came to her place of employment
and threatened her was included in the defense’s Exhibit AA at trial, and a
corresponding Complaint Report was disclosed in the most recent discovery. Since
this incident was known to trial counsel, the alleged failure to disclose the
Complaint Report detailing the same incident fails Brady’s materiality prong.
                                          9
credibility. Swogger’s recantation would not have raised a “reasonable

probability” of a different result. Kyles v. Whitley, 514 U.S. 419, 434 (1995).

      Finally, Petitioner asserts a Brady violation related to the prosecution’s

failure to disclose Jaime Hill’s statement to police. This is the only Brady claim

that was properly raised and exhausted in state proceedings. Given the

inconsistencies in Hill’s testimony, her father’s uncertainty about when the

incident took place, and the lack of evidence that officials working on the Downard

case knew about the incident such that they would have had a duty to disclose it to

the defense, we cannot conclude the issue is “debatable among jurists of reason.”

Lambright v. Stewart, 220 F.3d 1022, 1025 (9th Cir. 2000) (internal quotation

marks omitted).

      6. Petitioner also argues the district court’s denial of his requests for testing

and investigation constituted an abuse of discretion. Petitioner’s discovery request

related only to his unmeritorious ineffective assistance of counsel claim for failing

to independently test forensic evidence. Because we hold trial counsel did not

render ineffective assistance in his investigation of forensic evidence, the district

court did not abuse its discretion by denying Petitioner’s request for funding and

discovery.




                                           10
      Petitioner argues the district court’s denial of his federal habeas counsel’s

request to depose James Swogger constituted an abuse of discretion. The only

claims remaining in Petitioner’s Amended Petition when the court denied his

discovery request concerned the right to present a defense and ineffective

assistance of trial and appellate counsel, and Petitioner did not indicate how

deposing Swogger would be germane to these substantive claims. He therefore has

not made a substantial showing of the denial of a constitutional right. See 28

U.S.C. § 2253.

      7. Finally, Petitioner has not shown 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 v. Runnels, 505 F.3d 922, 933 (9th Cir. 2007)), nor otherwise

explained why this rarely successful doctrine is applicable here, see Harris ex rel.

Ramseyer v. Wood, 64 F.3d 1432, 1438 (9th Cir. 1995). Accordingly, he did not

show cumulative error.

      AFFIRMED.




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