Christopher O’neill v. RENEE BAKER, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER O’NEILL,
Petitioner-Appellant,
v.
RENEE BAKER, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
No. 20-15093
D.C. No. 3:11-cv-00901-MMD-
CLB
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Argued and Submitted April 16, 2021
San Francisco, California
Before: R. NELSON and FORREST, Circuit Judges, and JACK,** District
Judge.
Christopher O’Neill appeals from the district court’s order denying his
petition for writ of habeas corpus under 28 U.S.C. § 2254. We have jurisdiction
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Janis Graham Jack, United States District Judge for
the Southern District of Texas, sitting by designation.
FILED
MAY 27 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under 28 U.S.C. §§ 1291 and 2253(a), and we affirm.
As the parties are familiar with the facts, we need not repeat them here.
Because O’Neill’s federal habeas petition was filed after April 24, 1996, our
review is governed by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”). Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). Under
AEDPA, a federal court may grant habeas relief only when the state court decision
was (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States,”
or (2) “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).
O’Neill first challenges the Nevada Supreme Court’s decision affirming the
denial of his ineffective assistance of counsel claim. He contends that trial counsel
failed to properly communicate and investigate the case, which denied O’Neill the
opportunity to present his defenses that (1) Geraldine Mesker gave him the forged
checks as collateral for landscaping work, and that (2) his parole officer, Brent
Cooper, was extorting him. On appeal, O’Neill contends that the state court’s
finding that O’Neill failed to present credible evidence that he performed any work
for Mesker was contrary to the record. We disagree. The state court reasonably
concluded that O’Neill’s testimony at the post-conviction evidentiary hearing
lacked credibility. See Rice v. Collins, 546 U.S. 333, 341–42 (2006) (that

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reasonable minds might disagree about a factual finding “does not suffice to
supersede the trial court’s credibility determination” on habeas review); Hibbler v.
Benedetti, 693 F.3d 1140, 1148 (9th Cir. 2012) (“[W]e may not second-guess a
state court’s fact-finding process unless we determine that the state court was not
merely wrong, but actually unreasonable.” (internal quotations omitted)).
Moreover, the record supports the conclusion that the remaining evidence was
insufficient to establish that O’Neill had performed work for Mesker.
Accordingly, the state court decision was not based on any unreasonable
determination of fact. See 28 U.S.C. § 2254(d)(2).
To the extent O’Neill also contends that the state court decision involved an
unreasonable application of clearly established federal law under Strickland v.
Washington, 466 U.S. 668 (1984), we conclude that the Nevada Supreme Court
reasonably denied relief because O’Neill failed to establish prejudice resulting
from the alleged deficient performance of counsel. Because O’Neill did not
present credible evidence in support of his extortion theory and checks-as-
collateral defenses, he failed to demonstrate a “reasonable probability that . . . the
result of the proceeding would have been different” had trial counsel properly
communicated and investigated the case. Id. at 694. The state court decision was
not an unreasonable application of Strickland. See 28 U.S.C. § 2254(d)(1).
O’Neill also challenges the Nevada Supreme Court’s decision affirming the

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denial of his motion for a new trial based on the state’s failure to disclose evidence
of dishonesty by O’Neill’s parole officer. On appeal, O’Neill contends that the
state court applied the wrong legal standard, unreasonably determined that the
evidence was not material, and improperly denied the motion without an
evidentiary hearing. See 18 U.S.C. § 2254(d)(1), (2).
Contrary to O’Neill’s first argument, the state court applied the proper legal
standard under Brady and its progeny. See 28 U.S.C. § 2254(d)(1); Lockyer v.
Andrade, 538 U.S. 63, 73 (2003). The state court also reasonably determined that
O’Neill failed to establish materiality under Brady. See United States v. Bagley,
473 U.S. 667, 682 (1985) (“[E]vidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.”).
Specifically, the state court reasonably concluded that the impeachment
value of the undisclosed evidence was not material because Cooper’s testimony
was cumulative of trial testimony by other law enforcement officers. Strickler v.
Greene, 527 U.S. 263, 293–94 (1999) (finding no prejudice from evidence
impeaching key witness where there was strong evidence for conviction separate
from the witness’s testimony). Moreover, the Nevada Supreme Court’s conclusion
that the undisclosed evidence would not have undermined the basis for the search
was not objectively unreasonable in light of the record before the state court at the

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time and the arguments put forth by the parties on the motion for a new trial,1 nor
was it based on any unreasonable determination of fact. See 28 U.S.C.
§ 2254(d)(1), (2). The state court also reasonably rejected any argument that the
undisclosed evidence was material as support for O’Neill’s extortion theory.
Finally, under deferential AEDPA review, we conclude that the state court did not
act unreasonably in resolving O’Neill’s motion for a new trial without an
evidentiary hearing.2 See 28 U.S.C. § 2254(d)(2); Hibbler, 693 F.3d at 1146–49
(stating that a state court’s fact-finding process is deficient under § 2254(d)(2) only
if the failure to hold an evidentiary hearing was objectively unreasonable).
We treat O’Neill’s remaining argument as a motion to expand the certificate
of appealability. So treated, the motion is denied. See 9th Cir. R. 22-1(e); Hiivala
v. Wood, 195 F.3d 1098, 1104–05 (9th Cir. 1999).
AFFIRMED.
1 We do not consider the evidentiary hearing or other evidence presented in
separate state habeas proceedings on O’Neill’s ineffective assistance of counsel
claim. See Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (“[R]eview under
§ 2254(d)(1) is limited to the record that was before the state court that adjudicated
the claim on the merits.”). However, even if our review encompassed this
evidence, we would reach the same conclusion, because Officer Summers’s
testimony at the evidentiary hearing established an independent basis for the
detention leading to O’Neill’s charges.
2 It is unclear that O’Neill adequately raised this argument under 28 U.S.C.
§ 2254(d)(2) before the district court in his federal petition. See Miles v. Ryan, 713
F.3d 477, 494 n.19 (9th Cir. 2013) (deciding that an issue not raised before the
district court cannot be raised on appeal).

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