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NOT FOR PUBLICATION MAR 22 2010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, 1149-50

(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 (1986). Because there was no constitutional error at Amati's trial, there

liµewise was no cumulative constitutional error. See 28 U.S.C. y 2254(d)(1);

Williams v. Taylor, 529 U.S. 362, 406 (2000).

We decline to grant a certificate of appealability 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 lyrics. See 28 U.S.C. y 2253(c)(2); Hiivala v. Wood, 195 F.3d 1098,

1104 (9th Cir. 1999). We may not disturb the Nevada Supreme Court's

determination that Amati's statements were relevant under Nevada law. See

Estelle v. McGuire, 502 U.S. 62, 68 n.2 (1991). In light of this determination, the

Nevada Supreme Court's holding that the admission of these relevant statements

did not violate Amati's First Amendment rights is not an unreasonable application

of or contrary to Supreme Court precedent. See Wisconsin v. Mitchell, 508 U.S.

476, 489 (1993). '[T]he first amendment does not compel the exclusion of

evidence simply because it consists of speech. If a defendant's words or his silence are relevant to prove some issue in the case, they are admissible.' United

States v. Barnett, 667 F.2d 835, 844 (9th Cir. 1982).

The district court did not err in holding that Amati failed to exhaust a federal

challenge to Jury Instruction No. 13, and Amati did not argue in district court that

he should be excused from exhausting this claim because raising it in state court

would have been futile. He has therefore waived his argument that he is excused

from exhaustion. But even if we reached this argument, and even if futility could

excuse Amati's failure to exhaust, Amati has not established such futility. The

Nevada Supreme Court held that Byford v. State, 994 P.2d 700 (Nev. 2000), which

ordered Nevada courts to cease using an instruction identical to Jury Instruction

No. 13, applies to convictions that were 'not yet final' at the time Byford was

decided. Niµa v. State, 198 P.3d 839, 850 (Nev. 2008). The Nevada Supreme

Court issued Byford on February 28, 2000. See 994 P.2d at 700. Amati's

judgment of conviction was entered on March 8, 2000. Amati has not pointed to

any case, nor have we found any, establishing that his challenge to Jury Instruction

No. 13 would be futile under such circumstances. Because Amati has failed to

exhaust his claim in state court, we are precluded from addressing it here. See 28

U.S.C. yy 2254(b)-(c).

AFFIRMED.

FILED

Amati v. Crawford No. 08-15685 MAR 22 2010

MOLLY C. DWYER, CLERK

BERZON, J., concurring in part and dissenting in part: U.S . CO U RT OF AP PE A LS

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.