Opinion
No. 07-16570.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.
Filed April 21, 2010.
Karyn H. Bucur, Esquire, Karyn H. Bucur Attorney at Law, Laguna Hills, CA, David Miles Porter, Assistant Federal Public Defender, FPDCA-Federal Public Defender's Office, Sacramento, CA, for Petitioner-Appellant.
Arnold O. Overoye, Esquire, AGCA-Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Eastern District of California, Arthur L. Alarcon, Circuit Judge, Pre-siding. D.C. No. CV-02-00023-ALA.
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
California state prisoner Sidney Hubbard appeals from the district court's judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Hubbard contends that he received ineffective assistance of counsel at trial because his counsel failed to investigate potentially exculpatory evidence concerning the alleged reputation of the robbery victim. However, Hubbard failed to demonstrate that such evidence could have been discovered by counsel with reasonable diligence. Thus, the California court's rejection of this claim were neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1); see also Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).
Hubbard also contends that he received ineffective assistance of counsel because counsel did not object to the admission, at trial, of a videotaped store surveillance footage that lacked audio. Hubbard maintains that the missing audio component would have provided exculpatory evidence. However, Hubbard has failed to show that the missing audio portion was exculpatory. Thus the California court's rejection of this claim was neither contrary to, nor an un-reasonable application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1); see also Strickland, 466 U.S. at 687, 104 S.Ct. 2052.
We construe appellant's additional arguments as a motion to expand the certificate of appealability. So construed, the motion is denied. See 9th Cir. R. 22-1 (e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).