Jacob Smith v. ISIDRO BACA, Warden; ATTORNEY GENERAL FOR THE STATE OF NEVADA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACOB SMITH,
Petitioner-Appellant,
v.
ISIDRO BACA, Warden; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
No. 20-15278
D.C. No.
3:14-cv-00512-MMD-CLB
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, Chief District Judge, Presiding
Submitted August 21, 2023**
San Francisco, California
Before: BUMATAY, KOH, and DESAI, Circuit Judges.
Nevada state inmate Jacob Smith appeals the district court’s denial of his 28
U.S.C. § 2254 habeas corpus petition challenging his conviction for first-degree
murder. A screening panel of this court granted Smith’s application for a certificate
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 24 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of appealability with respect to his claim that the state justice court violated his right
to self-representation at his preliminary hearing under Faretta v. California, 422
U.S. 806 (1975), and whether that claim was properly exhausted. We did not
previously grant a certificate of appealability regarding Smith’s self-representation
claim stemming from the state district court. We review de novo the district court’s
denial of a habeas corpus petition. Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir.
2010). We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
1. Assuming that Smith properly exhausted his claim, the federal district
court correctly held that Smith cannot show that the state court’s decision was
contrary to federal law. See 28 U.S.C. § 2254(b)(2) (“An application for a writ of
habeas corpus may be denied on the merits, notwithstanding the failure of the
applicant to exhaust the remedies available in the courts of the State.”); see also
Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (“[A] federal court may deny
an unexhausted petition on the merits only when it is perfectly clear that the applicant
does not raise even a colorable federal claim.”). Under the Antiterrorism and
Effective Death Penalty Act, habeas relief is warranted only if the state court’s
decision was “contrary to, or involved an unreasonable application of, clearly
established Federal law as determined by the Supreme Court,” or if the decision “was
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).

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Here, Smith challenges the justice court’s decision to not allow him to proceed
pro se during the preliminary hearing. He cannot show that this decision was
contrary to clearly established Federal law because the Supreme Court has not
spoken on whether Faretta rights apply at a preliminary hearing. Smith identifies
no dispositive Supreme Court case on this point. While Faretta established the right
to self-representation at trial, 422 U.S. at 834, no Supreme Court case extends that
right of self-representation to a preliminary hearing. Accordingly, we cannot say
that the justice court’s decision was contrary to Federal law under Faretta.
2. Under Circuit Rule 22-1(e), we construe Smith’s briefing on the
uncertified issues regarding Faretta rights at trial before the state district court,
prosecutorial misconduct,1 and burden of proof as a motion to expand the certificate
of appealability. After considering Smith’s amended arguments, we deny the
motion. Smith cannot make a substantial showing of the denial of a constitutional
right. Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005) (quoting Nardi v. Stewart,
354 F.3d 1134, 1138 (9th Cir. 2004)).
AFFIRMED.
1 On August 16, 2023, the court received Smith’s pro se motion to amend his opening
brief to amend his uncertified issues to include prosecutorial misconduct. Dkt. No.
#76. We GRANT the motion and accept Smith’s amended arguments regarding
uncertified issues. Dkt. No. #77.

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