Maurice Nails v. L. S. MCEWEN, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MAURICE NAILS,
Petitioner - Appellant,
v.
L. S. MCEWEN, Warden,
Respondent - Appellee.
No. 14-15643
D.C. No. 3:13-cv-00917-SI
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Argued and Submitted October 20, 2015
San Francisco, California
Before: PAEZ, MURGUIA, and HURWITZ, Circuit Judges.
Maurice Nails, who was convicted of second-degree murder in California
state court, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a
writ of habeas corpus. We affirm.
1. During cross-examination, the prosecutor asked Nails if he was aware that
his brother had told the police that Nails shot the victim. Over a defense objection,
* This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
FILED
NOV 5 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Nails confirmed that he knew of his brother’s statement; the trial judge then
instructed the jury not to consider the statement for its truth, but only insofar as it
affected the defendant’s subsequent conduct. The trial judge gave a similar final
instruction. In light of those instructions and the other evidence at trial, even if we
assume that introduction of the brother’s statement violated the Due Process Clause
of the Fourteenth Amendment, we cannot find the California Court of Appeal’s
harmless error determination unreasonable under 28 U.S.C. § 2254(d)(1). See
People v. Nails, No. A128270, 2012 WL 758292, at *11–12 (Cal. Ct. App. Mar. 8,
2012). “A state court’s determination that a claim lacks merit precludes federal
habeas relief” where, as here, “‘fairminded jurists could disagree’ on the correctness
of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011)
(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Moreover, Nails has
not shown the “actual prejudice” required by Brecht v. Abrahamson, 507 U.S. 619,
637 (1993).
2. Nails argues that trial counsel was ineffective for failing to interview two
eyewitnesses who saw the shooting but could not identify Nails in a photographic
array. But Nails presented no evidence in his habeas petition to the California
Supreme Court in support of this claim. Federal review of that court’s denial of
relief is limited to consideration of the state court record, Cullen v. Pinholster, 131
S. Ct. 1388, 1398 (2011), which only discloses that the police attempted to locate

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these witnesses without success. Nails therefore has not shown that his counsel’s
alleged failure to interview these witnesses was ineffective. See Strickland v.
Washington, 466 U.S. 668, 687 (1984).
3. Nails argues that because counsel could not have reasonably decided not
to interview the two witnesses, the district court should have conducted an
evidentiary hearing under 28 U.S.C. § 2254(e)(2). But Nails has not shown that the
California Supreme Court unreasonably denied his claim, as he presented no
evidence of counsel’s allegedly deficient performance. Because Nails “failed to
surmount § 2254(d)’s limitation on habeas relief,” it follows that “he was not entitled
to an evidentiary hearing.” Sully v. Ayers, 725 F.3d 1057, 1076 (9th Cir. 2013).
AFFIRMED.

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