ROBERT HAYDEN NESBITT, Jr. v. FRANCISCO JACQUEZ, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT HAYDEN NESBITT, Jr.,
Petitioner - Appellant,
v.
FRANCISCO JACQUEZ, Warden,
Respondent - Appellee.
No. 13-15354
D.C. No. 2:09-cv-02821-GEB-
GGH
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Argued and Submitted February 9, 2016
San Francisco, California
Before: THOMAS, Chief Judge and SCHROEDER and NGUYEN, Circuit Judges.
Robert Hayden Nesbitt, Jr. appeals the district court’s denial of his habeas
petition brought under 28 U.S.C. § 2254. We have jurisdiction pursuant to
28 U.S.C. § 2253, and we affirm.
FILED
FEB 25 2016
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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Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
habeas relief is only available if a state court’s ruling was “contrary to, or involved
an unreasonable application of,” Supreme Court law that was “clearly established”
at the time the state court adjudicated the claim on the merits. 28 U.S.C.
§ 2254(d)(1); Greene v. Fisher, 132 S.Ct. 38, 43-44 (2011).
The California Court of Appeal’s denial of Nesbitt’s due process claim was
not unreasonable or contrary to federal law. First, Nesbitt’s claim that the trial
court erred by taking judicial notice of a probation report from his juvenile case
file was procedurally defaulted. See Coleman v. Thompson, 501 U.S. 722, 729
(1991). This court has held that California consistently applies its
contemporaneous objection rule when a party fails to object to the admission of
evidence, making it an independent and adequate state ground. Fairbank v. Ayers,
650 F.3d 1243, 1256 (9th Cir. 2011). Second, even if Nesbitt had timely objected,
the California Court of Appeal was not unreasonable in determining that he could
not establish prejudice because the trial court did not clearly rely on the contents of
the report.
We decline to expand the certificate of appealability to encompass Nesbitt’s
uncertified ineffective assistance of counsel claim because no “substantial showing
of the denial of a constitutional right” has been made with respect to this claim. 28
2

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U.S.C. § 2253(c)(2); see Slack v. McDaniel, 529 U.S. 473, 483–85 (2000). Given
the nature of the charged offenses and the seriousness of his criminal history,
Nesbitt cannot demonstrate that any alleged ineffective assistance resulted in
prejudice.1 See Strickland v. Washington, 466 U.S. 668, 694 (1984).
AFFIRMED.
1 Appellant’s Request for Judicial Notice is DENIED.
3

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