Bryon Garnett v. Dwight Neven, et al, No. 09-17174 (9th Cir. 2011)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT JAN 06 2011 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS BRYON GARNETT, Petitioner - Appellant, No. 09-17174 D.C. No. 2:06-cv-00933-JCM-RJJ v. MEMORANDUM * DWIGHT NEVEN; STATE OF NEVADA; ATTORNEY GENERAL OF THE STATE OF NEVADA, Respondents - Appellees. Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted December 7, 2010 San Francisco, California Before: D.W. NELSON, THOMPSON, and McKEOWN, Circuit Judges. State prisoner Bryon Garnett appeals the district court s denial of his petition for a writ of habeas corpus. The district court found that two decisions of the Nevada Supreme Court were not contrary to nor an unreasonable application of, * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. clearly established Federal law, as determined by the Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1). We affirm.1 Garnett has not established that his trial attorney provided ineffective assistance of counsel under the rule set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). In his closing argument, Garnett s counsel drew attention to the discrepancy between Garnett s height and eyewitness accounts of the robber s height. That counsel did not call an expert to analyze the robber s height using the surveillance videotape does not render his performance deficient. See id. at 688. Nor was counsel s performance deficient for failure to call an eyewitness identification expert, when counsel instead presented alibi witnesses and the favorable eyewitness testimony of the Mendozas. See id. In addition, Garnett has not established prejudice due to his trial attorney s failure to conduct a reenactment of the robbery. Garnett did not conduct a reenactment to show whether a person of 1 The district court certified three issues for appeal. We expand the Certificate of Appealability to include one of two uncertified issues Garnett raises in his opening brief. See 9th Cir. R. 22-1(e). [J]urists of reason would find it debatable whether Garnett first argued in his amended habeas corpus petition that his trial attorney was ineffective for failure to retain an eyewitness identification expert. See Slack v. McDaniel, 529 U.S. 473, 484 (2000). We conclude Garnett adequately raised this issue. As for the second uncertified issue, the Supreme Court has not clearly established whether a freestanding claim of actual innocence exists. Dist. Attorney s Office for Third Judicial Dist. v. Osborne, 129 S. Ct. 2308, 2321 (2009); see also 28 U.S.C. § 2254(d)(1). 2 his height would have been unable to jump over the store counter, so it is not possible to determine whether a reenactment might have altered the result of his trial. See id. at 694. Garnett s claim that the state violated Brady v. Maryland, 373 U.S. 83, 87 (1963), also fails. Even assuming the latent fingerprint reports were exculpatory, the prosecutor s failure to turn the reports over before the commencement of trial did not prejudice Garnett s case. Garnett s attorney elicited testimony to the effect that investigators had not matched Garnett s fingerprints to prints taken from the crime scene. He reiterated this during his closing argument. The relevant evidence was before the jury. Finally, the evidence produced at trial was sufficient to support a finding of guilt. Eyewitness Sylvanus Bradbury and off-duty clerk Janelle Goodnature identified Garnett as the robber. A rational trier of fact could have found proof of guilt beyond a reasonable doubt based upon these identifications. See Jackson v. Virginia, 443 U.S. 307, 324 (1979). AFFIRMED. 3
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