GREGG EBELING V. GREG SMITH, No. 12-16350 (9th Cir. 2014)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS SEP 17 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT No. 12-16350 GREGG EBELING, Petitioner - Appellant, D.C. No. 3:10-cv-00356-RCJWGC v. GREGORY SMITH; NEVADA ATTORNEY GENERAL, MEMORANDUM* Respondents - Appellees. Appeal from the United States District Court for the District of Nevada Robert Clive Jones, District Judge, Presiding Submitted September 10, 2014** San Francisco, California Before: BEA, IKUTA, and HURWITZ, Circuit Judges. Gregg Ebeling appeals the district court s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254(a). The Nevada Supreme Court s denial of Ebeling s claim that his Sixth and Fourteenth Amendment rights were violated by * 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 trial court s limitations on the cross-examination of the child witnesses, and by the exclusion of expert testimony regarding the child witnesses, was not contrary to or an unreasonable application of clearly established Supreme Court precedent. Cf. Taylor v. Illinois, 484 U.S. 400, 411 (1988); Chambers v. Mississippi, 410 U.S. 284, 302 03 (1973). The trial court did not prohibit Ebeling from engaging in otherwise appropriate cross-examination, see Delaware v. Van Arsdall, 475 U.S. 673, 679 80 (1986), and there is no Supreme Court case addressing the exclusion of expert testimony, Moses v. Payne, 555 F.3d 742, 757 59 (9th Cir. 2008). Although Ebeling failed to exhaust his due process claim based on prosecutorial misconduct, we deny it on the merits, 28 U.S.C. § 2254(b)(2), because the prosecutor s comments did not make the trial fundamentally unfair. See Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). AFFIRMED.

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