Troy David Smith v. GEROGE A. NEOTTI, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TROY DAVID SMITH,
Petitioner - Appellant,
v.
GEROGE A. NEOTTI, Warden,
Respondent - Appellee.,
No. 10-55759
D.C. No. 2:08-cv-05789-DOC-
DTB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Argued and Submitted December 6, 2011
Pasadena, California
Before: B. FLETCHER, SILVERMAN, and WARDLAW, Circuit Judges.
Troy David Smith appeals the district court’s denial of his petition for a writ
of habeas corpus pursuant to 28 U.S.C. § 2254. The district court granted a
certificate of appealability on the question of “[w]hether habeas relief is warranted
under 28 U.S.C. § 2254(d) with respect to petitioner’s claim that his trial counsel
FILED
DEC 22 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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rendered ineffective assistance of counsel by failing to properly prepare a witness
list and present an effective affirmative defense.” We have jurisdiction pursuant to
28 U.S.C. § 2253(a), and we affirm.
The California Court of Appeal’s determination that Smith’s trial counsel
did not render ineffective assistance was not “contrary to, or . . . an unreasonable
application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). The
standard for federal habeas relief is “difficult to meet” and “[s]urmounting
Strickland’s high bar [to establish ineffective assistance] is never an easy task.”
Harrington v. Richter, 131 S. Ct. 770, 786, 788 (2011) (citations and quotation
marks omitted). Here, Smith’s trial counsel properly prepared and filed a witness
list. The trial judge excluded the testimony of Pia Holmes and Keith Hayhurst for
stated reasons unrelated to trial counsel’s performance, or any bias or dislike the
trial judge may have harbored against him. Smith thus failed to establish that “his
counsel provided deficient assistance and that there was prejudice as a result.”
Harrington, 131 S. Ct. at 787.
AFFIRMED.

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