Tony Amati v. Jackie Crawford , 371 F. App'x 793 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
TONY RAY AMATI, No. 08-15685
Petitioner - Appellant, D.C. No. 04-CV-00138-PMP
v.
MEMORANDUM *
JACKIE CRAWFORD, Nevada Attorney
General,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Argued and Submitted February 12, 2010
San Francisco, California
Before: GOODWIN, BERZON and IKUTA, Circuit Judges.
The Nevada Supreme Court did not unreasonably apply clearly established
federal law as determined by the Supreme Court in holding that the 'implied
malice' instruction provided to the jury was constitutional. See Zant v. Stephens,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
462 U.S. 862, 881 (1983); see also Ficµlin v. Hatcher, 177 F.3d 1147, 1149-50
(9th Cir. 1999). Nor did the Nevada Supreme Court's determination that the
prosecutor's statements that Amati 'lied' were harmless constitute an unreasonable
application of Supreme Court precedent. See Darden v. Wainwright, 477 U.S. 168,
181-82 (1986). Because there was no constitutional error at Amati's trial, there
liµewise was no cumulative constitutional error. See 28 U.S.C. y 2254(d)(1);
Williams v. Taylor, 529 U.S. 362, 406 (2000).
We decline to grant a certificate of appealability for Amati's uncertified
issues. See 9th Cir. R. 22-1(e); Gonzalez v. Duncan, 551 F.3d 875, 879 n.6 (9th
Cir. 2008). Amati has not made a substantial showing of the denial of a
constitutional right resulting from admission at trial of his statements made in the
form of rap lyrics. See 28 U.S.C. y 2253(c)(2); Hiivala v. Wood, 195 F.3d 1098,
1104 (9th Cir. 1999). We may not disturb the Nevada Supreme Court's
determination that Amati's statements were relevant under Nevada law. See
Estelle v. McGuire, 502 U.S. 62, 68 n.2 (1991). In light of this determination, the
Nevada Supreme Court's holding that the admission of these relevant statements
did not violate Amati's First Amendment rights is not an unreasonable application
of or contrary to Supreme Court precedent. See Wisconsin v. Mitchell, 508 U.S.
476, 489 (1993). '[T]he first amendment does not compel the exclusion of
evidence simply because it consists of speech. If a defendant's words or his
silence are relevant to prove some issue in the case, they are admissible.' United
States v. Barnett, 667 F.2d 835, 844 (9th Cir. 1982).
The district court did not err in holding that Amati failed to exhaust a federal
challenge to Jury Instruction No. 13, and Amati did not argue in district court that
he should be excused from exhausting this claim because raising it in state court
would have been futile. He has therefore waived his argument that he is excused
from exhaustion. But even if we reached this argument, and even if futility could
excuse Amati's failure to exhaust, Amati has not established such futility. The
Nevada Supreme Court held that Byford v. State, 994 P.2d 700 (Nev. 2000), which
ordered Nevada courts to cease using an instruction identical to Jury Instruction
No. 13, applies to convictions that were 'not yet final' at the time Byford was
decided. Niµa v. State, 198 P.3d 839, 850 (Nev. 2008). The Nevada Supreme
Court issued Byford on February 28, 2000. See 994 P.2d at 700. Amati's
judgment of conviction was entered on March 8, 2000. Amati has not pointed to
any case, nor have we found any, establishing that his challenge to Jury Instruction
No. 13 would be futile under such circumstances. Because Amati has failed to
exhaust his claim in state court, we are precluded from addressing it here. See 28
U.S.C. yy 2254(b)-(c).
AFFIRMED.
FILED
Amati v. Crawford No. 08-15685 MAR 22 2010
MOLLY C. DWYER, CLERK
BERZON, J., concurring in part and dissenting in part: U.S . CO U RT OF AP PE A LS
I concur in the disposition with one exception: I would grant the certificate
of appealability with regard to the question whether introducing the rap lyrics for
the purpose of proving that Amati committed the crime for which he was convicted
violated Amati's constitutional rights.