David Wayne Kiehle v. CHARLES L. RYAN and ATTORNEY GENERAL OF THE STATE OF ARIZONA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID WAYNE KIEHLE,
Petitioner - Appellant,
v.
CHARLES L. RYAN and ATTORNEY
GENERAL OF THE STATE OF
ARIZONA,
Respondents - Appellees.
No. 12-16443
D.C. No. 2:11-cv-00352-GMS
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
G. Murray Snow, District Judge, Presiding
Argued and Submitted March 13, 2015
San Francisco, California
Before: NOONAN, W. FLETCHER, and CHRISTEN, Circuit Judges.
David Wayne Kiehle appeals the district court’s order denying his petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have jurisdiction
under 28 U.S.C. §§ 1291 and 2253(a). We affirm.
FILED
MAR 24 2015
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.

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We review a district court’s denial of a habeas petition de novo. Rhoades v.
Henry, 598 F.3d 495, 500 (9th Cir. 2010). We may grant relief if the state court’s
decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States.”
28 U.S.C. § 2254(d)(1).
1. Kiehle asserts an ineffective assistance of counsel claim based on his
attorney’s failure to participate in supplemental closing argument. We decline to
expand the certificate of appealability to encompass the uncertified issues raised in
Kiehle’s opening brief because Kiehle has not made “‘a substantial showing of the
denial of a constitutional right.’” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)
(quoting 28 U.S.C. § 2253(c)(2)).
2. Generally, to prevail on an ineffective assistance of counsel claim a
petitioner must show: (1) counsel’s performance was deficient; and (2) the
deficient performance was prejudicial. Strickland v. Washington, 466 U.S. 668,
687 (1984). In United States v. Cronic, the Supreme Court held that prejudice may
be presumed when “the likelihood that any lawyer, even a fully competent one,
could provide effective assistance is so small that a presumption of prejudice is
appropriate without inquiry into the actual conduct of the trial.” 466 U.S. 648,
659–60 (1984).
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The Arizona Superior Court did not unreasonably conclude that Cronic “is
inapplicable to this case.” No Supreme Court precedent supports finding a Cronic
violation under the circumstances presented here: the trial court’s decision to
permit supplemental closing argument presented Kiehle’s attorney with a difficult
situation, but as the district court explained, Kiehle’s attorney “could have
emphasized that the fingerprints were not David’s, could have sought to implicate
B., could have suggested that an unknown party was in the house, or could have
merely expounded on the standard of reasonable doubt.” The circumstances were
such that a competent lawyer could provide effective assistance. Cf. id. at 660–61
(discussing Powell v. Alabama, 287 U.S. 45 (1932)).
3. Kiehle’s motion to supplement the district court record is denied.
AFFIRMED.
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