FILED
NOT FOR PUBLICATION APR 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SIDNEY HUBBARD, No. 07-16570
Petitioner - Appellant, D.C. No. CV-02-00023-ALA
v.
MEMORANDUM *
TOM L. CAREY,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Arthur L. Alarcón, Circuit Judge, Presiding
Submitted April 5, 2010 **
Before: RYMER, McKEOWN, and PAEZ, Circuit Judges.
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.
*
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.
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 (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 unreasonable
application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1);
see also Strickland, 466 U.S. at 687.
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.
2 07-16570
22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per
curiam).
AFFIRMED.
3 07-16570