FILED
NOT FOR PUBLICATION MAR 25 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICKEY TODD MAJOR, No. 10-15742
Petitioner - Appellant, D.C. No. 3:99-cv-00237-LRH-
RAM
v.
E. K. MCDANIEL; FRANKIE S. DEL MEMORANDUM * AND ORDER
PAPA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted March 15, 2011
San Francisco, California
Before: PAEZ, BERZON, and BEA, Circuit Judges.
Nevada state prisoner Rickey Todd Major (“Major”) appeals the district
court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
The district court rejected all of Major’s claims for relief, but certified two issues
for appeal under 28 U.S.C. § 2253(c): that (1) Major’s trial attorney, Matthew
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Stermitz, rendered ineffective assistance of counsel by failing to prepare
adequately for trial by ensuring that he understood the forensic evidence; and (2)
that Stermitz was ineffective for failing to voir dire adequately the State’s forensic
anthropologist, Dr. Sheilagh Brooks.
Major’s petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d). We therefore cannot grant
habeas relief unless the last reasoned Nevada state court decision “‘was contrary
to’ federal law then clearly established in the holdings of th[e] [Supreme] Court; or
that it ‘involved an unreasonable application of’ such law; or that it ‘was based on
an unreasonable determination of the facts’ in light of the record before [it].’”
Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (citations omitted). Both of the
certified issues are governed by the standard set forth in Strickland v. Washington,
466 U.S. 668 (1984). Consequently, “[t]he pivotal question is whether the state
court’s application of the Strickland standard was unreasonable.” Harrington, 131
S. Ct. at 785. We review the district court’s denial of a habeas petition de novo.
See Martinez v. Schriro, 623 F.3d 731, 735 (9th Cir. 2010). We hold that the
district court did not err in rejecting the certified issues, but we certify an
additional claim for further briefing.
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1. The Nevada Supreme Court did not unreasonably apply Strickland in
holding that Major failed to show that Stermitz’s performance was deficient with
regard to his trial preparation for the forensic testimony. In order to prepare for
trial, Stermitz reviewed the expert reports and two books and consulted with his
own expert on multiple occasions. Moreover, Stermitz had an undergraduate
degree in geology and some experience working as an archeologist, during which
he “exhumed a few bodies.” The Nevada Supreme Court was not unreasonable in
holding that Stermitz’s preparation and investigation did not fall below prevailing
professional norms. See Harrington, 131 S. Ct. at 788; Wiggins v. Smith, 539 U.S.
510, 523 (2003).
2. We similarly reject Major’s argument that the Nevada Supreme Court
unreasonably applied Strickland to hold that Stermitz did not provide ineffective
assistance of counsel by failing to voir dire Dr. Brooks adequately as to her expert
qualifications or to object to her certification as a forensic expert. In particular,
Major has failed to present any evidence to suggest that Dr. Brooks was actually
unqualified to give expert testimony under Nevada law. See Nev. Rev. Stat.
50.275; Staccato v. Valley Hosp., 123 Nev. 526, 530–31 (2007). Therefore, the
Nevada Supreme Court was not unreasonable in holding that Stermitz did not
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render ineffective assistance with regard to Dr. Brooks being qualified as an expert
witness. See Harrington, 131 S. Ct. at 788.
3. Pursuant to 28 U.S.C. § 2253(c), we hereby GRANT a certificate of
appealability as to Ground Two of Major’s Amended Petition for Habeas Corpus.
See Opening Br. at 29–34. By April 11, 2011, Respondent shall file a
supplemental answering brief, not to exceed 8,400 words, addressing the following
two questions: (1) whether the Nevada Supreme Court’s decision that Major’s right
to due process and a fair trial were not violated when the trial court refused to
dismiss a juror whose coworker remarked that the prosecution had possession of a
knife used in the murder was contrary to or involved an unreasonable application
of clearly established Supreme Court precedent, or was based on an unreasonable
determination of the facts in light of the record before it; and (2) the standard of
prejudice review that this court ought to employ. Petitioner’s supplemental reply
brief, not to exceed 5,600 words, is due two weeks from the date upon which
Respondent’s brief is filed.
4. Major’s request for a certificate of appealability as to the remaining
uncertified issues is DENIED.
5. The time to file a petition for rehearing shall not begin to run until the
court files a supplemental disposition regarding the newly certified issue.
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So ordered.
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