Gurry

MEMORANDUM *

Nevada state prisoner Carlos A. Gurry appeals the district court’s denials of his petition for habeas corpus under 28 U.S.C. § 2254 and his motion for relief from judgment under Federal Rule of Civil Procedure 60(b). We affirm the denial of Gurry’s habeas petition, vacate the denial of his Rule 60(b) motion, and deny the requested relief.

Because the Nevada Supreme Court considered Gurry’s evidentiary challenges under state law but did not reach their merits under federal law, we apply federal law de novo. See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.2002). We are not persuaded that the testimony of Gurry’s expert on eyewitness identification, which would have supplemented defense counsel’s cross-examinations and jurors’ common experiences, was so “critical to the defense” that its exclusion rendered the trial fundamentally unfair. Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir.2004). Although, as Gurry notes, there has been a trend in recent years toward admitting such testimony, most, if not all, of the courts following this trend have based their decisions on evidentiary, rather than constitutional, grounds. See, e.g., United States v. Rincon, 28 F.3d 921, 926…