FILED
NOT FOR PUBLICATION SEP 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGG EBELING, No. 12-16350
Petitioner - Appellant, D.C. No. 3:10-cv-00356-RCJ-
WGC
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.