                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 25 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT

ROBERT MCDANIELS,                                No. 09-17339

              Petitioner - Appellant,            D.C. No. 4:05-cv-00904-PJH

  v.
                                                 MEMORANDUM*
RICHARD J. KIRKLAND, Warden and
KRAMER, Warden,

              Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

KEELON T. JENKINS,                               No. 11-15030

              Petitioner - Appellant,            D.C. No. 3:05-cv-02003-MHP

  v.
                                                 MEMORANDUM*
MICHAEL S. EVANS,

              Respondent - Appellee.


Appeal from the United States District Court for the Northern District of California
                Marilyn H. Patel, Senior District Judge, Presiding

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Argued and Submitted January 17, 2013
                            Withdrawn April 22, 2013
                          Resubmitted March 26, 2014
                            San Francisco, California

Before: WALLACE, FARRIS and BYBEE, Circuit Judges.

      McDaniels and Jenkins (Petitioners) appeal from the district courts’

judgments denying their separate 28 U.S.C. § 2254 habeas petitions. Petitioners

were tried and convicted together in the Alameda County Superior Court of the

State of California on a charge of first degree murder, among others. In a

separately filed published disposition, we considered their argument that the

prosecutor engaged in racial discrimination while selecting the jury. Here we deal

with their individual claims that their counsel provided ineffective assistance. We

have jurisdiction under 28 U.S.C. § 2253 and, applying de novo review, we affirm.

      McDaniels’s counsel did not provide ineffective assistance when counsel

told a witness that McDaniels wanted her to change her testimony because

reasonable jurists could disagree as to whether the outcome of the trial would have

been different had counsel not made those statements. See Harrington v. Richter,

131 S. Ct. 770, 785–87 (2011).

      Jenkins raises an ineffective assistance argument that was not part of his

Certificate of Appealability (COA), which we construe as a motion to expand the


                                          2
COA. 9th Cir. R. 22-1(e). So construed, the motion is denied. Hiivala v. Wood,

195 F.3d 1098, 1104–05 (9th Cir. 1999).

      The Court has received a submission from McDaniels dated June 21, 2013.

Because McDaniels is represented by counsel, and only counsel may file motions,

we decline to entertain this submission.

      AFFIRMED.




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