Steven F. Sherer v. Stephen Sinclair

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NOT FOR PUBLICATION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
STEVEN F. SHERER,
Petitioner - Appellant,
v.
STEPHEN SINCLAIR,
Respondent - Appellee.
No. 09-35934
D.C. No. 2:06-cv-01635-RSM
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, District Judge, Presiding
Argued and Submitted April 9, 2012
Seattle, Washington
Before: HUG, TASHIMA, and CALLAHAN, Circuit Judges.
Petitioner-Appellant Steven Sherer appeals the district court’s denial of his
28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction of first
degree murder. He contends that there was insufficient evidence to convict him,
his trial counsel’s performance fell below the level required under Strickland v.
FILED
APR 27 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Sherer raises an uncertified issue in his opening brief. We construe1
Sherer’s additional arguments as a motion to expand the certificate of
appealability. So construed, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala
v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).
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Washington, 466 U.S. 668 (1984), and the government suppressed exculpatory
evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). The facts1
underlying this appeal are known to the parties and need not be repeated here. We
have jurisdiction under 28 U.S.C. § 2253, and we affirm the district court’s denial
of the petition.
Contrary to Sherer’s contention, the record reflects that the state courts’
decisions rejecting Sherer’s sufficiency of the evidence and ineffective assistance
of counsel claims were not contrary to, or an unreasonable application of, clearly
established Federal law. See 28 U.S.C. § 2254(d)(1); Boyer v. Belleque, 659 F.3d
957, 964-65 (9th Cir. 2011); Harrington v. Richter, ––– U.S. ––––, 131 S. Ct. 770,
788 (2011). Nor were those decisions based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceedings. See 28
U.S.C. § 2254(d)(2).
Sherer’s Brady claim fails as well. Even assuming arguendo that de novo
review applies, given the strength of the evidence against petitioner versus the

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relative weakness of the dog tracking evidence, petitioner has not demonstrated a
reasonable probability that disclosure of the allegedly suppressed dog tracking
report would have produced a different result. See Strickler v. Greene, 527 U.S.
263, 281-82, 289 (1999).
AFFIRMED.

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