FILED
NOT FOR PUBLICATION DEC 22 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TROY DAVID SMITH, No. 10-55759
Petitioner - Appellant, D.C. No. 2:08-cv-05789-DOC-
DTB
v.
GEROGE A. NEOTTI, Warden, MEMORANDUM *
Respondent - Appellee.,
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted December 6, 2011
Pasadena, California
Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.
Troy David Smith appeals the district court’s denial of his petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. The district court granted a
certificate of appealability on the question of “[w]hether habeas relief is warranted
under 28 U.S.C. § 2254(d) with respect to petitioner’s claim that his trial counsel
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
rendered ineffective assistance of counsel by failing to properly prepare a witness
list and present an effective affirmative defense.” We have jurisdiction pursuant to
28 U.S.C. § 2253(a), and we affirm.
The California Court of Appeal’s determination that Smith’s trial counsel
did not render ineffective assistance was not “contrary to, or . . . an unreasonable
application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). The
standard for federal habeas relief is “difficult to meet” and “[s]urmounting
Strickland’s high bar [to establish ineffective assistance] is never an easy task.”
Harrington v. Richter, 131 S. Ct. 770, 786, 788 (2011) (citations and quotation
marks omitted). Here, Smith’s trial counsel properly prepared and filed a witness
list. The trial judge excluded the testimony of Pia Holmes and Keith Hayhurst for
stated reasons unrelated to trial counsel’s performance, or any bias or dislike the
trial judge may have harbored against him. Smith thus failed to establish that “his
counsel provided deficient assistance and that there was prejudice as a result.”
Harrington, 131 S. Ct. at 787.
AFFIRMED.