                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 10 2010

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




                            FOR THE NINTH CIRCUIT



ALAN D. DANIELS,                                  No. 10-15221

              Petitioner - Appellant,             D.C. No. 2:02-cv-01352-LRH-
                                                  LRL
  v.

ROBERT HILDRETH,                                  MEMORANDUM *

              Respondent - Appellee.



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

                           Submitted December 8, 2010 **
                             San Francisco, California

Before: THOMPSON, COWEN *** and SILVERMAN, Circuit Judges.

       Alan Daniels appeals the district court’s denial of his Petition for Writ of

Habeas Corpus. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we look


         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 Robert E. Cowen, Senior United States Circuit Judge
for the Third Circuit, sitting by designation.
                                          -2-

to the last reasoned state court decision to determine whether it was contrary to, or

an unreasonable application of, Federal law. 28 U.S.C. § 2254(d); Cook v. Schriro,

538 F.3d 1000, 1015 (9th Cir. 2008). We affirm.

      The Nevada Supreme Court’s rejection of Daniels’ misjoinder claim was not

contrary to, or an unreasonable application of, Supreme Court precedent. Daniels

argues that he was denied a fair trial by the trial court allowing the robberies of the

two bars to be tried in one case and denying his motion to sever. But evidence of

the Pepe Muldoon’s robbery would have been admissible in a separate trial of the

Inn Zone robbery, and vice versa, as the two crimes were part of the same

“common plan or scheme.” See Nev. Rev. Stat. § 48.045(2); see also Fed. R. Evid.

404(b). And the strength of the State’s evidence of the Inn Zone robbery was not

significantly stronger than that of the Pepe Muldoon’s robbery. See Sandoval v.

Calderon, 241 F.3d 765, 773 (9th Cir. 2001) (finding lack of prejudicial joinder

given strength of State’s case in both sets of crimes and cross-admissibility of

evidence); Bean v. Calderon, 163 F.3d 1073, 1084-86 (9th Cir. 1998) (finding

prejudicial joinder given lack of cross-admissibility of evidence and vigorous

dispute regarding physical evidence of one crime).

      Daniels also argues that his trial counsel rendered ineffective assistance by

failing to object to or move to suppress the Pepe Muldoon’s bartender’s in-court
                                          -3-

identification. The Nevada Supreme Court was not unreasonable in ruling that

Daniels’ motion to suppress the lineup identification would likely not have been

granted. The court was also not unreasonable to hold that the outcome of the case

would not have been different even if the lineup identification had been

suppressed. Daniels also has not shown that the Pepe Muldoon’s bartender’s in-

court identification would have been disallowed had counsel objected. And given

the strength of other evidence linking Daniels to the Pepe Muldoon’s robbery,

including the undisputed presence of his fingerprints on the napkin used by the

robber, there is no reasonable probability that the outcome of trial would have been

any different even if Daniels’ trial counsel successfully objected to the Pepe

Muldoon’s bartender’s in-court identification. See Strickland v. Washington, 466

U.S. 668, 694 (1984) (counsel’s performance is prejudicial if “there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.”).

      Finally, we deny Daniels’ motion to expand the certificate of appealability to

include Grounds 3 and 4 of his habeas petition. The district court denied a COA

on Grounds 3 and 4 because Daniels failed to demonstrate cause for his failure to

timely present those claims in his first state petition. Jurists of reason would not
                                          -4-

“find it debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 478 (2000).

      AFFIRMED.
