FILED
NOT FOR PUBLICATION DEC 10 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MATTHEW JAMES KING, No. 08-17561
Petitioner - Appellant, D.C. No. 3:05-cv-00128-JCM-
VPC
v.
E.K. MCDANIEL, Warden; NEVADA MEMORANDUM *
ATTORNEY GENERAL,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted December 2, 2009
San Francisco, California
Before: B. FLETCHER, THOMAS and N.R. SMITH, Circuit Judges.
Defendant Matthew James King appeals the district court’s order dismissing
his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We affirm. Because the
parties are familiar with the factual and procedural history of this case, we will not
recount it here.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I
The district court correctly determined that any error under state law in
admitting Detective Sherwood’s statements on the cause of Hatsady’s injuries did
not rise to the level of a due process violation. To violate due process, wrongly
admitted evidence must be “so extremely unfair that its admission violates
fundamental conceptions of justice.” Dowling v. United States, 493 U.S. 342, 352
(1990) (quotation marks and citation omitted). Moreover, any error was harmless,
as defense counsel mitigated the effect of Sherwood’s testimony by securing an
admission on cross-examination that Hatsady’s injuries were also consistent with
having allergies, wearing contacts, and drinking alcohol. In addition, medical
record evidence submitted to the jury included a notation from Hatsady’s treating
physician Stephen Mussehl indicating that she suffered “acute . . . [a]sphyxiation.”
We thus conclude that the Nevada Supreme Court’s rejection of King’s
claim was neither “contrary to,” nor “an unreasonable application of,” clearly
established Supreme Court law. 28 U.S.C. § 2254(d)(1).
II
The district court properly denied King’s challenge to the sufficiency of the
evidence sustaining his convictions. “A petitioner for a federal writ of habeas
corpus faces a heavy burden when challenging the sufficiency of the evidence used
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to obtain a state conviction on federal due process grounds.” Juan H. v. Allen, 408
F.3d 1262, 1274 (9th Cir. 2005). Sufficient evidence supports a conviction if,
viewing the evidence in the light most favorable to the prosecution, any rational
trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319 (1979). “After
AEDPA, we apply the standards of Jackson with an additional layer of deference.”
Juan H., 408 F.3d at 1274.
King argues that insufficient evidence established the specific-intent element
of attempted murder. However, Hatsady testified that King strangled her from
behind; that he continued to do so while she resisted, banging her head against the
floor and bed frame, and after she feigned death; and that she eventually lost
consciousness. Hatsady also testified that she awoke with a telephone cord tied
tightly around her neck. On this evidence, a rational trier of fact could have found
that King specifically intended to kill her beyond a reasonable doubt. Although
King challenges the credibility of Hatsady’s testimony, we must presume that the
jury resolved any conflicts in favor of the prosecution and defer to that resolution.
See McMillan v. Gomez, 19 F.3d 465, 469 (9th Cir. 1994); see also Schlup v. Delo,
513 U.S. 298, 330 (1995) (recognizing that the credibility of witnesses is generally
beyond the scope of sufficiency of the evidence review).
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King next challenges the sufficiency of the evidence to support his
kidnapping conviction. A rational juror could have found that the evidence
satisfied the elements of kidnapping under Nevada law beyond a reasonable doubt.
There was evidence that King moved Hatsady from the bedroom into the shower
and that she regained consciousness with a telephone cord wound tightly around
her neck and with handcuffs attached. See, e.g., Hutchins v. State, 867 P.2d 1136,
1140 (Nev. 1994) (upholding a kidnapping conviction for a robber who seized,
confined, and carried his victim from the living room of her apartment to the hall
area because “the forcible method used to relocate her to a secure setting for the
assault, coupled with the measures used to accomplish restraint, created a greater
risk of harm . . . .”).
Finally, King challenges his convictions for robbery and grand theft auto on
the ground that insufficient evidence establishes that he took Hatsady’s property.
However, as the district court found, “[a] rational juror permissibly may infer from
the fact that both the assailant and the victim’s property are gone after the victim
regained consciousness that the assailant took the property from the unconscious
victim, particularly where, as here, the assailant and the victim were alone together
in the assailant’s motel room.” We agree, and affirm the district court’s denial of
habeas relief on this ground.
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III
King claims that he received ineffective assistance of counsel when his trial
attorneys failed to conduct forensic testing, call medical expert witnesses, and
investigate evidence pointing to another assailant. To make out a claim for
ineffective assistance, King must show that trial counsel’s performance: (1) fell
below an objective standard of reasonableness, and (2) prejudiced the outcome of
the trial. Strickland v. Washington, 466 U.S. 668 (1984). We affirm the district
court’s rejection of all three of King’s claims of ineffective assistance of trial
counsel.
King alleges that his trial counsel performed deficiently by failing to obtain
forensic testing of: (1) a red-brown substance observed on a sock and near a light
switch, and (2) red hair found in a knotted telephone cord. However, defense
counsel repeatedly emphasized the State’s failure to link the evidence forensically
to Hatsady and thus did not perform ineffectively. Second, King does not support
his contention that the test results would likely have excluded Hatsady. Even if the
results did exclude Hatsady, they would have had minimal exculpatory value given
that the evidence came from a motel room with frequent guest turnover.
King next asserts that defense counsel performed ineffectively in failing to
call Dr. Mussehl to testify that Hatsady’s injuries were consistent with King’s
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“rough sex” defense. The Nevada Supreme Court rejected this claim on post-
conviction review on the ground that it “is belied by the record,” and we agree.
Dr. Mussehl’s notes included a notation that Hatsady suffered “acute . . .
[a]sphyxiation.” Moreover, no prejudice resulted, as defense counsel highlighted
in his closing statement the inadequacy of Sherwood’s testimony, the content of
the medical reports, and the State’s failure to call any medical experts.
Finally, King argues that defense counsel performed ineffectively by failing
to conduct an adequate investigation into the possibility of another assailant.
However, King’s story that he abandoned Hatsady after finding her unconscious
from drug use had already been discredited and his claim of another assailant
rested on pure speculation. The Nevada Supreme Court’s rejection of this claim
was thus neither contrary to, nor an unreasonable application of, the Strickland
standard.
IV
King contends that his appellate counsel performed ineffectively in failing to
object when the State “intentionally and deliberately failed to collect, preserve, and
disclose” four items of potentially exculpatory evidence. This claim also relies on
pure speculation, as King does not provide any support for the proposition that
forensic testing of the items would have likely exonerated him or identified a
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different assailant. Appellate counsel is not required to raise every non-frivolous
issue on appeal. Jones v. Barnes, 463 U.S. 745 (1983). Thus, the state court’s
decision rejecting this claim was not contrary to, or an unreasonable application of,
the Strickland standard.
V
King argues that cumulative error rendered his trial fundamentally unfair in
violation of due process. The Nevada Supreme Court dismissed this claim on the
rationale that all of King’s individual claims of error fail. We agree, and conclude
that King’s final claim does not provide a basis for federal habeas relief.
AFFIRMED.
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