                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                          OCT 20 2014

                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS

EDWIN ANTHONY PELLECIER,                         No. 13-15682

              Petitioner - Appellant,            D.C. No. 4:05-cv-00159-FRZ

  v.
                                                 MEMORANDUM*
JERRY STERNES; JOHN PALOSAARI,
Warden; ATTORNEY GENERAL OF
THE STATE OF ARIZONA,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                  Frank R. Zapata, Senior District Judge, Presiding

                            Submitted October 8, 2014**
                                Phoenix, Arizona

Before: D.W. NELSON, SILVERMAN, and M. SMITH, Circuit Judges.

       Edwin Pellecier was sentenced to 25 years to life in prison for murdering

James Williford, and seven-and-one-half years in prison for each of three counts of


        *
             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).
aggravated assault with a deadly weapon, to run consecutively to the murder

sentence. The Arizona Court of Appeals affirmed the conviction and sentence, and

the district court subsequently denied Pellecier’s amended 28 U.S.C. § 2254

petition. On appeal, Pellecier contends that the state court erred in finding that: 1)

Pellecier was not prejudiced by any deficiency in his trial counsel’s performance;

2) Pellecier was not entitled to the effective assistance of counsel during his post-

conviction proceedings; 3) the prosecutor did not present evidence that he knew or

should have known was false, and that any allegedly false testimony did not

materially affect the jury’s verdict; and 4) sufficient evidence was presented at trial

to permit a reasonable juror to conclude that Pellecier acted with premeditation,

and not in self-defense, when he killed Williford. Pellecier has not demonstrated

that the Arizona Court of Appeals’ decision affirming his conviction was based on

an unreasonable factual determination, or was contrary to or involved an

unreasonable application of clearly established Supreme Court law. In addition,

Pellecier has not established that he is actually innocent, which would permit this

court to review his untimely remaining claims. We affirm.

      Pellecier’s ineffective assistance claims fail because he cannot demonstrate

that his counsel’s alleged deficiencies prejudiced him, or that his trial counsel’s

strategic decisions were professionally unreasonable. See Strickland v.


                                           2
Washington, 466 U.S. 668, 687, 690-91 (1984). Pellecier failed to show that the

jury’s verdict “would reasonably likely have been different” had his counsel

challenged the State’s bullet trajectory evidence, interviewed prospective witnesses

to rebut the State’s motive evidence, or conducted pretrial interviews of certain

witnesses. See id. at 696.

      In addition, Pellecier has not demonstrated that his trial counsel’s strategic

decision not to “draw the sting” on two witnesses who lied in their initial

statements to police was professionally unreasonable; nor has he shown that his

counsel acted unreasonably in deciding to present evidence of Pellecier’s good

character at trial. Id. at 691. Scrutiny of counsel’s tactical decisions must be

highly deferential, id. at 689, and the state court’s determination that Pellecier

failed to satisfy the Strickland standard is afforded even more latitude on habeas

review. Knowles v. Mirzayance, 556 U.S. 111, 123 (2009).

      Pellecier’s claim that his appellate counsel provided ineffective assistance

fails because the Supreme Court has not clearly stated that habeas petitioners are

entitled to effective counsel in the post-conviction process beyond the narrow

exception the Court recognized in Martinez v. Ryan, 132 S. Ct. 1309, 1315 (2012).

This limited exception has no application to Pellecier’s case.




                                           3
      A habeas petitioner may obtain relief on a claim of prosecutorial misconduct

at a state trial if he can show that the prosecutor failed to correct the testimony of a

witness that he knew to be false. Napue v. Illinois, 360 U.S. 264, 265 (1959).

Pellecier has not shown that Detective Filipelli’s “surprise” testimony was false, let

alone that the prosecution knew it to be false. Pellecier admits that it is not

unconstitutional to convict a defendant with “surprise” evidence. See Weatherford

v. Bursey, 429 U.S. 545, 560 (1977).

      Pellecier has not demonstrated that, after viewing the evidence in the light

most favorable to the prosecution, no rational trier of fact could have found the

essential elements of his crimes beyond a reasonable doubt. See Jackson v.

Virginia, 443 U.S. 307, 319 (1979). Sufficient evidence was adduced at trial to

support the verdict against him.

      Finally, Pellecier has not made a credible showing of actual innocence to

permit review of his untimely Claims 10-12, which were not raised in his original

habeas petition. See 28 U.S.C. § 2244(d)(1)(A); Lee v. Lampert, 653 F.3d 929,

932 (9th Cir. 2011) (en banc). Pellecier has not demonstrated that a constitutional

error occurred, much less that, but for that error, it is more likely than not that no

reasonable juror would have found him guilty beyond a reasonable doubt. Schlup

v. Delo, 513 U.S. 298, 327 (1995).


                                            4
    The district court did not err in denying Pellecier’s § 2254 petition.

AFFIRMED.




                                        5
