Small

Small v. Horel

Good Law
367 F. App'x 759
United States Court of Appeals for the Ninth CircuitFebruary 23, 201007-55838California1,408 words

Opinion

Opinion

MEMORANDUM

State prisoner Shelley Lamont Small (“Small”) appeals from the district court’s denial of his 28 U.S.C. § 2254 petition. In 1998, Small was convicted of first degree murder and assault with a firearm. After Small unsuccessfully challenged his conviction on direct appeal in the California state courts, he filed pro se a round of state habeas petitions. All of Small’s state petitions were denied. Small filed pro se a federal habeas petition, which this court held was timely in Small v. Roe, 122 Fed.Appx. 344, 345 (9th Cir.2005), but which the district court ultimately denied on the merits. Both the state and federal habeas petitions raised issues concerning the ineffectiveness of Small’s trial and appellate counsel.

We granted a certificate of appealability on the following issues: (1) whether trial counsel was ineffective for failing to interview alibi witnesses, and whether this claim is exhausted; and (2) whether Small was denied due process when the trial court failed to give a special unanimity instruction on the assault with a firearm count. Small has abandoned his claim for ineffective assistance of appellate counsel.

This case arises under the Antiterrorism and…

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