Ralph Marcus v. Darrell Adams, et al, No. 09-15410 (9th Cir. 2011)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 23 2011 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS RALPH ALBERT MARCUS, Petitioner - Appellant, No. 09-15410 D.C. No. 2:06-cv-00926-ATG v. MEMORANDUM* DARRELL G. ADAMS; ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, Respondents - Appellees. Appeal from the United States District Court for the Eastern District of California Alfred T. Goodwin, Senior Circuit Judge, Presiding Submitted February 18, 2011** San Francisco, California Before: TALLMAN and BEA, Circuit Judges, and CONLON, District Judge.*** * 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 Suzanne B. Conlon, United States District Judge for the Northern District of Illinois, sitting by designation. Petitioner-appellant Ralph Albert Marcus appeals the district court s denial of his petition for writ of habeas corpus. We affirm. The district court granted a Certificate of Appealability on two issues: (1) whether Marcus s due process rights under Brady v. Maryland, 373 U.S. 83 (1963), were violated by the prosecution s alleged withholding of exculpatory cassette tapes; and (2) whether Marcus s Sixth Amendment right to effective assistance of counsel was violated by his trial counsel s performance, under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). Marcus and his counsel do not brief either certified issue in this appeal. Instead, Marcus s briefing focuses exclusively on a third, uncertified issue concerning the pretrial removal of his public defender for a conflict of interest. That claim is unmeritorious and we decline to address it. See 9th Cir. R. 22-1(e). Having waived the two certified issues by failing to brief them, Marcus does not present any colorable claim on appeal. AFFIRMED. 2

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