                                                                              FILED
                             NOT FOR PUBLICATION                               MAR 25 2011

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




                             FOR THE NINTH CIRCUIT



RICKEY TODD MAJOR,                                 No. 10-15742

              Petitioner - Appellant,              D.C. No. 3:99-cv-00237-LRH-
                                                   RAM
  v.

E. K. MCDANIEL; FRANKIE S. DEL                     MEMORANDUM * AND ORDER
PAPA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                       Argued and Submitted March 15, 2011
                             San Francisco, California

Before: PAEZ, BERZON, and BEA, Circuit Judges.

       Nevada state prisoner Rickey Todd Major (“Major”) appeals the district

court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

The district court rejected all of Major’s claims for relief, but certified two issues

for appeal under 28 U.S.C. § 2253(c): that (1) Major’s trial attorney, Matthew


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Stermitz, rendered ineffective assistance of counsel by failing to prepare

adequately for trial by ensuring that he understood the forensic evidence; and (2)

that Stermitz was ineffective for failing to voir dire adequately the State’s forensic

anthropologist, Dr. Sheilagh Brooks.

       Major’s petition is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d). We therefore cannot grant

habeas relief unless the last reasoned Nevada state court decision “‘was contrary

to’ federal law then clearly established in the holdings of th[e] [Supreme] Court; or

that it ‘involved an unreasonable application of’ such law; or that it ‘was based on

an unreasonable determination of the facts’ in light of the record before [it].’”

Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (citations omitted). Both of the

certified issues are governed by the standard set forth in Strickland v. Washington,

466 U.S. 668 (1984). Consequently, “[t]he pivotal question is whether the state

court’s application of the Strickland standard was unreasonable.” Harrington, 131

S. Ct. at 785. We review the district court’s denial of a habeas petition de novo.

See Martinez v. Schriro, 623 F.3d 731, 735 (9th Cir. 2010). We hold that the

district court did not err in rejecting the certified issues, but we certify an

additional claim for further briefing.




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      1. The Nevada Supreme Court did not unreasonably apply Strickland in

holding that Major failed to show that Stermitz’s performance was deficient with

regard to his trial preparation for the forensic testimony. In order to prepare for

trial, Stermitz reviewed the expert reports and two books and consulted with his

own expert on multiple occasions. Moreover, Stermitz had an undergraduate

degree in geology and some experience working as an archeologist, during which

he “exhumed a few bodies.” The Nevada Supreme Court was not unreasonable in

holding that Stermitz’s preparation and investigation did not fall below prevailing

professional norms. See Harrington, 131 S. Ct. at 788; Wiggins v. Smith, 539 U.S.

510, 523 (2003).

      2. We similarly reject Major’s argument that the Nevada Supreme Court

unreasonably applied Strickland to hold that Stermitz did not provide ineffective

assistance of counsel by failing to voir dire Dr. Brooks adequately as to her expert

qualifications or to object to her certification as a forensic expert. In particular,

Major has failed to present any evidence to suggest that Dr. Brooks was actually

unqualified to give expert testimony under Nevada law. See Nev. Rev. Stat.

50.275; Staccato v. Valley Hosp., 123 Nev. 526, 530–31 (2007). Therefore, the

Nevada Supreme Court was not unreasonable in holding that Stermitz did not




                                            3
render ineffective assistance with regard to Dr. Brooks being qualified as an expert

witness. See Harrington, 131 S. Ct. at 788.

      3. Pursuant to 28 U.S.C. § 2253(c), we hereby GRANT a certificate of

appealability as to Ground Two of Major’s Amended Petition for Habeas Corpus.

See Opening Br. at 29–34. By April 11, 2011, Respondent shall file a

supplemental answering brief, not to exceed 8,400 words, addressing the following

two questions: (1) whether the Nevada Supreme Court’s decision that Major’s right

to due process and a fair trial were not violated when the trial court refused to

dismiss a juror whose coworker remarked that the prosecution had possession of a

knife used in the murder was contrary to or involved an unreasonable application

of clearly established Supreme Court precedent, or was based on an unreasonable

determination of the facts in light of the record before it; and (2) the standard of

prejudice review that this court ought to employ. Petitioner’s supplemental reply

brief, not to exceed 5,600 words, is due two weeks from the date upon which

Respondent’s brief is filed.

      4. Major’s request for a certificate of appealability as to the remaining

uncertified issues is DENIED.

      5. The time to file a petition for rehearing shall not begin to run until the

court files a supplemental disposition regarding the newly certified issue.


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So ordered.




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