Edward Finley v. Craig Farwell

FILED
NOT FOR PUBLICATION SEP 21 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO UR T OF AP PE A LS

FOR THE NINTH CIRCUIT

EDWARD FINLEY, No. 08-15888

Petitioner - Appellant, D.C. No. 3:05-CV-00152-KJD-
VPC
v.

CRAIG FARWELL; STATE OF MEMORANDUM *
NEVADA ATTORNEY GENERAL,

Respondents - Appellees.

Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding

Argued and Submitted August 30, 2010
San Francisco, California

Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.

Appellant Edward Finley (Finley) challenges the district court's denial of his

petition for writ of habeas corpus. Because Finley's habeas petition was filed after

1996, his claim is governed by the Antiterrorism and Effective Death Penalty Act

(AEDPA). See Howard v. Clarµ, 608 F.3d 563, 567 (9th Cir. 2010).

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 Under the AEDPA, Finley's petition can only be granted if the State court's

'adjudication of the claim resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States.' Id. (citations and alteration omitted).

Finley contends that the admission of the child-victim's testimony without a

competency hearing violated his Sixth Amendment right to confront adverse

witnesses. No clearly established federal law connects a competency hearing with

an accused's confrontation rights. The absence of any clearly established federal

law vitiates a habeas claim under the AEDPA. See Holley v. Yarborough, 568 F.3d

1091, 1098 (9th Cir. 2009) ('When there is no clearly established federal law on an

issue, a state court cannot be said to have unreasonably applied the law as to that

issue.' (citation omitted)). In addition, the Nevada Supreme Court concluded that

'[n]othing in the record suggests that the child-victim . . . was not a competent

witness.' We give deference to this conclusion by the state court. See Oxborrow

v. Eiµenberry, 877 F.2d 1395, 1399 (9th Cir. 1989) (deferring to state court's

application of state's sentencing act). Absent a showing in the record of a lacµ of

competency on the part of the child-victim, Finley cannot show prejudice. See

Maxwell v. Roe, 606 F.3d 561, 567-68 (9th Cir. 2010).

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 Finley also argues that his Sixth Amendment right to effective assistance of

counsel was violated when his trial counsel failed to request a competency hearing

for the child-victim and/or object to the child-victim's testimony on competency

grounds. In view of the lacµ of evidence in the record calling into question the

competency of the child-victim, Finley cannot demonstrate that trial counsel's

representation fell below an objective standard of reasonableness. See Stricµland

v. Washington, 466 U.S. 668, 688 (1984); see also Smith v. Robbins, 528 U.S. 259,

288 (2000) (noting that counsel's decision not to pursue a meritless claim does not

constitute ineffective assistance of counsel).

Finley next asserts that his Sixth Amendment right to effective assistance of

counsel was violated when his trial counsel failed to present evidence of a Miranda

violation and/or when his appellate counsel failed to raise the Miranda violation

issues on direct appeal. The state court concluded that Finley's trial counsel's

decision to rely on a coercion argument was a tactical decision and not ineffective

assistance of counsel. The state court's decision was not an unreasonable

application of Stricµland. See 466 U.S. at 689 (explaining the latitude given

attorneys to maµe strategic decisions).

The state court also concluded that Finley's challenge to his appellate

counsel failure to raise the meritless Miranda violation lacµed merit. See Robbins,

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528 U.S. at 288. The state court's denial of this claim was not contrary to Federal

law. See id.

Finally, Finley alleges that the prosecutor engaged in misconduct. It is

clearly established federal law that a trial is rendered fundamentally unfair where

'the prosecutors' comments so infected the trial with unfairness as to maµe the

resulting conviction a denial of due process.' Darden v. Wainwright, 477 U.S.

168, 181 (1986) (citation and internal quotation marµs omitted). Finley failed to

maµe a showing that his trial was rendered fundamentally unfair by the

prosecutor's remarµs. Therefore, the state court decision denying this claim was

not contrary to clearly established federal law. See id.

AFFIRMED.

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 FILED
Finley v. Farwell, No. 08-15888 SEP 21 2010
Tallman, Circuit Judge, Concurring: MOLLY C. DWYER, CLERK
U.S . CO UR T OF AP PE A LS

I concur in the result.