Tracey Godfrey v. ATTORNEY GENERAL OF THE STATE OF MONTANA and LEROY KIRKEGARD, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable James C. Mahan, District Judge for the U.S. District***
Court for the District of Nevada, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRACEY GODFREY,
Petitioner - Appellant,
v.
ATTORNEY GENERAL OF THE STATE
OF MONTANA and LEROY
KIRKEGARD, Warden,
Respondents - Appellees.
No. 10-35099
D.C. No. 9:09-cv-00035-DWM-
JCL
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted March 6, 2013**
Portland, Oregon
Before: CLIFTON and BEA, Circuit Judges, and MAHAN, District Judge.***
FILED
MAR 08 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

Tracy Godfrey appeals the denial of his habeas corpus petition under 28
U.S.C. § 2254. We have jurisdiction under 28 U.S.C. § 1291 and § 2253(a), and we
affirm.
The prosecution’s cross-examination questions about Godfrey’s failure to
come forward with his exculpatory story before trial violated his due process rights
under Doyle v. Ohio, 426 U.S. 610 (1976). However, the Montana Supreme
Court’s rejection of his Doyle claim was not contrary to or an unreasonable
application of clearly established federal law, see 28 U.S.C. § 2254(d); Harrington
v. Richter, 131 S.Ct. 770, 785 (2012), because the Doyle violation was harmless.
The weighty evidence against Godfrey at trial was strong enough to preclude a
determination that the error had a substantial effect in determining the jury’s
verdict. Brecht v. Abrahamson, 507 U.S. 619, 637-39 (1993).
The Montana Supreme Court’s rejection of Godfrey’s claim that his lawyer
was ineffective by not objecting to the prosecution’s questions about his silence
was not an unreasonable application of Strickland v. Washington, 466 U.S. 668
(1984). Even assuming his lawyer acted unreasonably, Godfrey has not shown “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Id. at 694.

-- 2 of 3 --

Godfrey concedes the procedural default of his claim that he was denied the
right to counsel at his re-sentencing hearing. Thus, this court may not reach the
merits of this claim. Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007).
AFFIRMED.

-- 3 of 3 --