Tony Smith v. E. McDaniel

MEMORANDUM

Nevada state prisoner, Tony M. Smith, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction of murder, robbery, burglary, and conspiracy to commit robbery. We review de novo the district court’s denial of a state prisoner’s habeas petition. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.2005). We affirm.

I.

Habeas corpus review of prosecutorial misconduct claims is limited to deciding whether the alleged misconduct violated due process. Darden v. Wainwright, 477 U.S. 168, 181 , 106 S.Ct. 2464 , 91 L.Ed.2d 144 (1986). The Supreme Court has stated that, in order “[t]o constitute a due process violation, the prosecutorial misconduct must be of sufficient significance to result in the denial of the defendant’s right to a fair trial.” Greer v. Miller, 483 U.S. 756, 765 , 107 S.Ct. 3102 , 97 L.Ed.2d 618 (1987) (internal citation and quotation omitted). At trial, Petitioner sought to demonstrate that the prison had a “turnaround” policy, which allowed prisoners to move from one location to another only at designated times, and the existence of that policy would have prevented him from being in the murder victim’s…