Tony Amati v. Jackie Crawford

FILED

NOT FOR PUBLICATION MAR 22 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

TONY RAY AMATI, No. 08-15685

Petitioner - Appellant, D.C. No. 04-CV-00138-PMP

v.

MEMORANDUM *

JACKIE CRAWFORD, Nevada Attorney General,

Respondents - Appellees.

Appeal from the United States District Court for the District of Nevada Philip M. Pro, District Judge, Presiding

Argued and Submitted February 12, 2010 San Francisco, California

Before: GOODWIN, BERZON and IKUTA, Circuit Judges.

The Nevada Supreme Court did not unreasonably apply clearly established

federal law as determined by the Supreme Court in holding that the 'implied

malice' instruction provided to the jury was constitutional. See Zant v. Stephens,

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 462 U.S. 862, 881 (1983); see also Ficµlin v. Hatcher, 177 F.3d 1147, 1149-

(9th Cir. 1999). Nor did the Nevada Supreme Court's determination that the

prosecutor's statements that Amati…

MEMORANDUM *

The Nevada Supreme Court did not unreasonably apply clearly established federal law as determined by the Supreme Court in holding that the “implied malice” instruction provided to the jury was constitutional. See Zant v. Stephens, 462 U.S. 862, 881 , 103 S.Ct. 2733 , 77 L.Ed.2d 235 (1983); see also Ficklin v. Hatcher, 177 F.3d 1147, 1149-50 (9th Cir.1999). Nor did the Nevada Supreme Court’s determination that the prosecutor’s statements that Amati “lied” were harmless constitute an unreasonable application of Supreme Court precedent. See Darden v. Wainwright, 477 U.S. 168, 181-82 , 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986). Because there was no constitutional error at Amati’s trial, there likewise was no cumulative constitutional error. See 28 U.S.C. § 2254 (d)(1); Williams v. Taylor, 529 U.S. 362, 406 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

We decline to grant a certificate of ap-pealability for Amati’s uncertified issues. See 9th Cir. R. 22-1(e); Gonzalez v. Duncan, 551 F.3d 875 , 879 n. 6 (9th Cir.2008). Amati has not made a substantial showing of the denial of a constitutional right resulting from admission at trial of his statements made in the form of rap…

concurring in part and dissenting in part:

I concur in the disposition with one exception: I would grant the certificate of appealability with regard to the question whether introducing the rap lyrics for the purpose of proving that Amati committed the crime for which he was convicted violated Amati’s constitutional rights.