Blankenship
v.
Vare

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITDec 2, 2015
623 Fed. Appx. 898 (9th Cir. 2015)

No. 12-15484

12-02-2015

D. E. BLANKENSHIP, Jr., Petitioner - Appellant, v. LEONARD VARE; NEVADA ATTORNEY GENERAL, Respondents - Appellees.


NOT FOR PUBLICATION

D.C. No. 3:08-cv-00641-LRH-VPC MEMORANDUM Appeal from the United States District Court for the District of Nevada
Larry R. Hicks, District Judge, Presiding Argued and Submitted November 16, 2015 San Francisco, California Before: THOMAS, Chief Judge and IKUTA and HURWITZ, Circuit Judges.

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. --------

Donald Blankenship, who was convicted in Nevada state court of sexually assaulting his daughter, appeals the district court's denial of 28 U.S.C. § 2254 habeas relief. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We affirm.

1. The conclusion of the Nevada Supreme Court that Blankenship "failed to show that there was a reasonable probability of a different result at trial" had testimony regarding certain prior bad acts not been elicited by defense counsel was not an unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). The victim testified in detail as to each assault, and the case turned on her credibility. The testimony about prior bad acts was a minor portion of the evidence that the jury heard, and the state did not mention the bad acts in summation. Fairminded jurists could thus "disagree on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101 (2011) (internal citations and quotation marks omitted).

2. We decline to expand the certificate of appealability and therefore do not address Blankenship's remaining arguments.

AFFIRMED.