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Fisher v. Stewart
Citation: 51 F. App'x 767Docket: No. 01-16883; D.C. No. CV-01-00154-WDB
Court: Court of Appeals for the Ninth Circuit; December 3, 2002; Federal Appellate Court
John Edward Fisher, an Arizona state prisoner, appeals the denial of his 28 U.S.C. § 2254 petition, asserting ineffective assistance of both trial and appellate counsel and arguing procedural default regarding other claims. The court affirms the district court's decision. Fisher argues that his trial counsel was ineffective for failing to object to the prosecutor's closing arguments. The court finds that the remarks were not egregious misstatements, and therefore, the failure to object falls within acceptable professional conduct. Regarding appellate counsel, Fisher claims ineffectiveness for not raising several issues. The court determines that Fisher does not demonstrate that appellate counsel's performance was deficient or that raising those issues would likely have changed the outcome of the appeal. Lastly, Fisher challenges the district court's ruling on procedural default for remaining issues in his petition. The court agrees with the district court, citing Arizona Rule of Criminal Procedure 32.2(a), which precludes these issues since they were not raised in state proceedings. Fisher also fails to show actual cause and prejudice or actual innocence to bypass the procedural default. The ruling is affirmed, and the disposition is not intended for publication or citation in this circuit, as per Ninth Circuit Rule 36-3.