Antonio Tony McKibbins v. BRIAN WILLIAMS, Warden and ATTORNEY GENERAL OF THE STATE OF NEVADA

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Edward R. Korman, Senior District Judge for the U.S.**
District Court for the Eastern District of New York, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO TONY MCKIBBINS,
Petitioner - Appellant,
v.
BRIAN WILLIAMS, Warden and
ATTORNEY GENERAL OF THE STATE
OF NEVADA,
Respondents - Appellees.
No. 12-15177
D.C. No. 2:09-cv-00437-RLH-
GWF
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted May 13, 2013
San Francisco, California
Before: CLIFTON and BEA, Circuit Judges, and KORMAN, Senior District
Judge.**
Nevada state prisoner Antonio McKibbins appeals the district court’s denial
of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction for
FILED
MAY 17 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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robbery with a deadly weapon and failure to stop on the signal of a police officer.
He was sentenced as a habitual criminal to life with the possibility of parole after
10 years on the robbery with a deadly weapon charge, and to a consecutive
sentence of 2 to 6 years on the failure to stop charge. His conviction was affirmed
on direct appeal and in the state post-conviction court. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm the district court’s order denying the
petition.
McKibbins claims he was denied a fair trial when the trial court allowed his
former counsel, Frank Kocka, to speak in private to the trial judge in chambers in
support of his motion to withdraw from the case. There is no evidence that Kocka
told the trial judge anything that prejudiced McKibbins’ trial. McKibbins was
appointed new counsel and he did not explicitly raise an ineffective assistance of
counsel claim as to either Kocka or substitute counsel. Mere citation of cases that
discuss an ineffective assistance of counsel claim is insufficient to raise that claim
without any claim that counsel was ineffective in this case.
Further, McKibbins does not claim that there was structural error, nor has he
cited any cases for the proposition that he was entitled to be present during this
conference. Given that there is no proof as to what Kocka said to the trial judge,
McKibbins has failed to meet his burden to prove the state court’s denial of this

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McKibbins does not claim he was with his wife when she met with Kocka.1
He was in jail, and the meeting was at Kocka’s office. Nor does McKibbins claim
that his wife was his representative as set forth in Nevada Revised Statute 49.095
for purposes of the communication.
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claim “resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law as determined by the Supreme Court
of the United States” or “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d).
McKibbins also claims he was denied a fair trial when the trial judge
allowed the prosecution to call Kocka as a rebuttal witness in response to
McKibbins’ wife’s testimony about her conversations with Kocka. McKibbins’1
former wife opened the door to her communications with Kocka when she testified
she had told Kocka about this defense. The trial judge was careful to keep out all
communication between Kocka and McKibbins himself, even when another person
was present. Consequently, the decision of the Nevada Supreme Court to deny the
claim is not “contrary to, [n]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).
Finally, given the overwhelming evidence of guilt, Kocka’s testimony was
harmless. McKibbins was caught driving the stolen car. He was wearing clothes

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that were in the car at the time it was stolen. The clothes that the robber wore at
the time of the robbery were found in the car. He was identified by the victim, her
fiancé, and the arresting officer as the man driving the stolen car. He was also
identified by the victim as the man who took the car from her by knife.
AFFIRMED.

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