                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            JAN 18 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MICHAEL B. WADSWORTH,                            No.   17-15822

              Petitioner-Appellant,              D.C. No.
                                                 2:13-cv-00401-GMN-GWF
 v.

BRIAN WILLIAMS, Warden and                       MEMORANDUM*
ATTORNEY GENERAL FOR THE
STATE OF NEVADA,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Gloria M. Navarro, Chief Judge, Presiding

                    Argued and Submitted December 20, 2018
                            San Francisco, California

Before: CALLAHAN, N.R. SMITH, and MURGUIA, Circuit Judges.

      Michael Wadsworth appeals the district court’s denial of his second

amended habeas petition under 28 U.S.C. § 2254, as amended by the Antiterrorism

and Effective Death Penalty Act of 1996 (AEDPA), and his motion for leave to file

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
a third amended petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253,

and we affirm.

      1. The State argues that, prior to addressing the substance of this case, we

should review the Certificate of Appealability (COA) issued by a prior panel of

this court. A COA may be issued by a court “only if the applicant has made a

substantial showing of the denial of a constitutional right,” and the issuing court

“shall indicate which specific issue or issues satisfy” that showing. 28 U.S.C.

§ 2253(c)(2), (3). When the government timely asserts that the issuing court failed

to satisfy this requirement, “the court of appeals panel must address the defect

. . . .” Gonzalez v. Thaler, 565 U.S. 134, 146 (2012). Here, the prior panel (issuing

the COA) addressed the alleged defect when it denied the State’s motion to

reconsider the COA. We are in no better position than our colleagues to address the

alleged defect; and we decline to further do so.

      2. Wadsworth contends that the district court improperly denied his motion

for leave to file a third amended petition. However, the amended grounds for relief

are time-barred and do not relate back to the filing of the original petition, as they

do not share “a common core of operative facts” with the grounds set forth in the




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original petition. Mayle v. Felix, 545 U.S. 644, 664 (2005).1 Wadsworth’s new

claims are premised on the existence of a faulty self-defense instruction, but none

of the original claims depended on or concerned a faulty self-defense jury

instruction. Wadsworth’s insufficiency of the evidence claim and his claim that his

counsel ineffectively failed to adequately pursue a theory of self-defense both

focused on the fact that counsel merely proposed a self-defense jury instruction

without providing any argument in support of a theory of self-defense, but not on

the content of the self-defense jury instruction. Neither the original nor the timely

amended petitions alleged that the self-defense jury instruction was faulty. See

Nguyen v. Curry, 736 F.3d 1287, 1297 (9th Cir. 2013), abrogated on other

grounds by Davila v. Davis, 137 S. Ct. 2058 (2017).

      Furthermore, even if the third amended petition was timely filed, the district

court would have been obligated to dismiss it, as the new claims were unexhausted

at the time of filing. See Rose v. Lundy, 455 U.S. 509, 522 (1982).2




      1
        Wadsworth does not challenge the district court’s finding that his motion
for leave to amend was filed after the applicable statute of limitations had expired.
      2
        Our decision in Dixon v. Williams, 750 F.3d 1027 (9th Cir. 2014) is
irrelevant in this case. That another defendant in a different case ultimately
prevailed on an argument that Wadsworth could have asserted does not excuse
Wadsworth’s failure to timely assert that argument.
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       3. Wadsworth argues that the trial court’s failure to admit his police

statement and videotaped discussion with his aunt and grandmother violated his

due process rights by limiting his ability to present his theory of defense and

forcing him to testify at trial.

       Wadsworth testified at trial that his counsel “informed [him] that [he did]

not have to testify,” but that he had nevertheless “chosen to do it.” Accordingly, it

was not unreasonable for the Nevada Supreme Court to determine that he was not

forced to testify, but rather chose to exercise his right “to decide strategically

whether to testify and thus reveal[] damaging information.” Comer v. Schriro, 480

F.3d 960, 987 (9th Cir. 2007) (citing Rock v. Arkansas, 483 U.S. 44, 53 (1987)).

Wadsworth also failed to provide any evidence regarding how he was prejudiced

by his testimony.

       Additionally, Wadsworth has not challenged the Nevada Supreme Court’s

finding that he never sought admission of the videotape. Nor has he challenged the

Court’s finding that he had not identified any non-duplicative beneficial

information that would have been elicited if the police statement or videotape had

been admitted. Consequently, even assuming the trial court’s failure to admit the

evidence was error, it was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 638

(1993).


                                            4
      4. Wadsworth argues that the trial court violated his due process rights by

failing to accept defense counsel’s proposed jury instruction regarding how the

jury should interpret conflicting evidence. When reviewing a jury instruction with

substantially similar language to Wadsworth’s proposed instruction, the Nevada

Supreme Court “ruled that it is not error to refuse to give the [requested]

instruction if the jury is properly instructed regarding reasonable doubt.” Deveroux

v. State, 610 P.2d 722, 724 (Nev. 1980). That ruling is not contrary to any decision

from the United States Supreme Court. Accordingly, because there is no dispute

that the trial court properly instructed the jury as to reasonable doubt, the trial court

did not commit error in refusing to give Wadsworth’s proposed instruction. See

Harrington v. Richter, 562 U.S. 86, 100 (2011).

      5. Wadsworth argues that he was denied his constitutional right to effective

assistance of counsel at trial. To succeed on his ineffective assistance of counsel

claims, Wadsworth must demonstrate both that counsel’s performance was

deficient and that the deficient performance prejudiced him. Strickland v.

Washington, 466 U.S. 668, 687 (1984). He has failed to make such a

demonstration for any of his claims.

      Wadsworth first alleges that his counsel was ineffective in deciding to

pursue only a second shooter theory of defense. The Nevada Supreme Court


                                            5
determined that there was substantial evidence supporting the state district court’s

finding that defense counsel was not deficient in pursuing only a second shooter

theory of defense. We agree. There is ample evidence supporting the second

shooter theory, including Wadsworth’s testimony that he heard shots fired before

he shot at the ground, a witness’s account to the police that there was another man

with a gun at the scene of the shooting, the differing testimony of multiple

witnesses regarding how many shots were fired, and the State’s ballistics expert’s

testimony that he could not confirm that the bullet that fatally wounded the victim

came from Wadsworth’s gun. Moreover, Wadsworth’s testimony, that he fired his

weapon “at the ground” to “settle the crowd” and not out of a sense of imminent

danger, significantly reduced the likelihood of success on a theory of self-defense.

The Nevada Supreme Court’s decision was accordingly not based on an

unreasonable determination of facts, nor does it represent an unreasonable

application of Strickland.

      Second, Wadsworth argues that trial counsel ineffectively presented the

second shooter theory of defense—and thereby required Wadsworth to testify at

trial with inadequate preparation. However, Wadsworth has not provided any

evidence indicating how his testimony would have been different with better

preparation. Consequently, Wadsworth has failed to demonstrate prejudice.


                                          6
      Finally, Wadsworth contends that his trial counsel ineffectively failed to

investigate the case and understand the ballistics evidence prior to trial and to hire

a ballistics expert. Again, however, Wadsworth has not alleged what evidence

additional expert testimony would have provided or how counsel’s presentation

would have differed if he had “understood” the State’s ballistic report. Wadsworth

accordingly failed to demonstrate prejudice for this claim as well. See Wildman v.

Johnson, 261 F.3d 832, 839 (9th Cir. 2001).

      AFFIRMED.




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