Charles Anthony Summers v. NEVADA ATTORNEY GENERAL and JAMES BENEDETTI

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES ANTHONY SUMMERS,
Petitioner - Appellant,
v.
NEVADA ATTORNEY GENERAL and
JAMES BENEDETTI,
Respondents - Appellees.
No. 11-16479
D.C. No. 3:09-cv-00674-LRH-
RAM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted May 12, 2014
San Francisco, California
Before: SILVERMAN and GOULD, Circuit Judges, and LEMELLE, District
Judge.**
FILED
MAY 15 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Ivan L.R. Lemelle, District Judge for the U.S. District
Court for the Eastern District of Louisiana, sitting by designation.

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Nevada state prisoner Charles Summers appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas petition challenging his Nevada murder conviction.
We have jurisdiction pursuant to 28 U.S.C. § 2253 and affirm.
The district court did not err in denying claim one, which alleged that
counsel was ineffective for failing to investigate or interview witnesses, on the
merits. “Conclusory allegations” not supported by “specific facts do not warrant
habeas relief.” Greenway v. Schriro, 653 F.3d 790, 804 (9th Cir. 2011). Nor did
the district court abuse its discretion by not allowing Summers to amend the claim.
Amendment would have been futile because Summers cannot allege facts for a
claim that has been exhausted in state court. Caswell v. Calderon, 363 F.3d 832,
837 (9th Cir. 2004).
We agree that the district court erred in presuming that state court findings
are correct pursuant to 28 U.S.C. § 2254(e) without first ordering and reviewing
the relevant transcripts for claims three and four. Dyer v. Wilson, 446 F.2d 900,
900 (9th Cir. 1971) (per curiam); Rule 5 of the Rules Governing Section 2254
Cases Rules in the United States District Courts. However, the error was
harmless. The parties agree that Summer’s state appeal brief contained an accurate
and complete quote of the relevant voir dire transcript relevant to claim three, the
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juror bias claim. The state court’s finding that the prospective juror could be fair
was not unreasonable.
Furthermore, the district court had the relevant transcript for claim four,
ineffective assistance of counsel regarding the counsel’s failure to interview the
officer. It was attached to the state court habeas petition. The state court did not
unreasonably reject the ineffective assistance of counsel claim for lack of
prejudice. The lawyer’s failure to interview the officer in advance of trial had no
bearing on his ability to object to the evidence in question if he had seen fit to do
so.
AFFIRMED.
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