Cram v. Stewart

132 F. App'x 689

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2005
• Docket: No. 04-15866; D.C. No. CV-01-00123-DGC
• Status: Published

Opinion

MEMORANDUM

**

Arizona state prisoner Barbara Ruth Cram appeals pro se the district court’s denial of her 28 U.S.C. § 2254 petition challenging her conviction for aggravated assault. We have jurisdiction pursuant to 28 U.S.C. 2253. We review de novo, see Leavitt v. Arave, 371 F.3d 663, 668 (9th Cir.2004), and we affirm.

Cram contends that her trial counsel rendered ineffective assistance by failing to discover and offer an aerial photograph of the crime scene and by failing to call certain defense witnesses. We disagree. The determination that no prejudice resulted from not introducing an aerial photograph, which was taken eighteen days prior to the incident and had little probative value, was not an unreasonable application of Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). See 28 U.S.C. § 2254(d)(1). Likewise, the determination that no prejudice resulted from the failure to call certain defense witnesses, who would have testified as to their observation of the crime scene eleven days after the offense, was also not objectively unreasonable. See id.

To the extent Cram raises issues not encompassed within the certificate of appealability (“COA”), we construe these as a motion to broaden the COA and deny the motion. See 28 U.S.C. § 2253(c)(2); 9th Cir. R. 22-l(e). We express no opinion as to whether her claims of abuse by prison guards while incarcerated ■ may form the basis for an action under 42 U.S.C. § 1983.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.