David Kiehle v. Charles Ryan

MEMORANDUM

David Wayne Kiehle appeals the district court’s order denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We affirm.

We review a district court’s denial of a habeas petition de novo. Rhoades v. Henry, 598 F.3d 495, 500 (9th Cir.2010). We may grant relief if the state court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1).

1. Kiehle asserts an ineffective assistance of counsel claim based on his attorney’s failure to participate in supplemental closing argument. We decline to expand the certificate of appealability to encompass the uncertified issues raised in Kiehle’s opening brief because Kiehle has not made “ ‘a substantial showing of the denial of a constitutional right.’ ” Miller-El v. Cockrell, 537 U.S. 322, 327 , 123 S.Ct. 1029 , 154 L.Ed.2d 931 (2003) (quoting 28 U.S.C. § 2253 (c)(2)).

2. Generally, to prevail on an ineffective assistance of counsel claim a petitioner must show: (1) counsel’s performance was deficient; and (2) the…