NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID TIFFANY,

Petitioner-Appellant, 

 v. 

ROBERT LEGRAND, Warden; 

ATTORNEY GENERAL FOR THE 

STATE OF NEVADA

Respondents-Appellees.

No. 19-15796

D.C. No. 

3:13-cv-00682-MMD-CBC

MEMORANDUM*

On Appeal from the United States District Court

for the District of Nevada

Miranda M. Du, District Judge, Presiding

Submitted August 10, 2020**

San Francisco, California

Before: GRABER and BRESS, Circuit Judges, and DAWSON,*** District Judge.

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

*** The Honorable Robert T. Dawson, United States District Judge for the 

Western District of Arkansas, sitting by designation.

FILED

AUG 13 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

David Tiffany appeals the district court’s denial of his petition for writ of 

habeas corpus pursuant to 28 U.S.C. § 2254. Tiffany’s petition challenged his 

convictions for lewdness with a child under the age of 14, sexual assault of a minor 

under the age of 14, solicitation of a minor, and child abuse and neglect. The sole 

basis of Tiffany’s appeal is whether his due process rights were violated when the 

trial court denied his request for investigative funds. On direct appeal in the state 

court system, the Nevada Supreme Court held that the trial court abused its 

discretion in denying the funds, but it concluded the error was harmless beyond a 

reasonable doubt. On habeas review, the district court held that the decision from 

the Nevada Supreme Court was neither contrary to nor an unreasonable application 

of clearly established federal law. See 28 U.S.C. § 2254(d)(1). We have 

jurisdiction under 28 U.S.C. § 2253, and we affirm. 

1. Tiffany argues that the trial court’s denial of investigative funds should 

be deemed a structural error and, thus, that prejudice must be presumed. Tiffany 

principally relies on Ake v. Oklahoma, 470 U.S. 68 (1985), to support this position. 

The Constitution requires courts to ensure that indigent defendants have “a fair 

opportunity to present [their] defense,” and the Supreme Court has held that 

indigent defendants are entitled to psychiatric experts under some circumstances. 

Id. at 76, 83. However, the Supreme Court has not determined whether indigent 

defendants are entitled to non-psychiatric experts. See Caldwell v. Mississippi, 472 
3 

U.S. 320, 323 n. 1 (1985) (leaving the question open as to “what if any showing” 

would entitle an indigent defendant to non-psychiatric assistance as a matter of 

federal constitutional law). Thus, the trial court’s denial of funds was neither 

contrary to nor an unreasonable application of clearly established federal law. See 

White v. Woodall, 572 U.S. 415, 426 (2014) (holding that 28 U.S.C. § 2254(d)(1) 

“does not require state courts to extend [Supreme Court] precedent or license 

federal courts to treat the failure to do so as error.” (emphasis in original)).

2. Even if Ake extended beyond non-psychiatric assistance, there is no 

clearly established Supreme Court authority to suggest that an Ake violation is 

structural in nature. Indeed, there is a split of authority on the question of whether 

an Ake violation constitutes a trial error subject to harmless error inquiry or a 

structural error in which prejudice should be presumed. Compare McWilliams v. 

Comm’r, Alabama Dep’t of Corr., 940 F.3d 1218, 1224–26 (11th Cir. 2019) 

(holding that an Ake violation was structural error), with White v. Johnson, 153 

F.3d 197, 201 (5th Cir. 1998) (holding that an Ake violation was subject to 

harmless error analysis), Tuggle v. Netherland, 79 F.3d 1386, 1392–93 (4th Cir. 

1996) (same), and Brewer v. Reynolds, 51 F.3d 1519, 1529 (10th Cir. 1995)

(same). Because there is no clearly established Supreme Court authority, we need 

not resolve this issue and Tiffany is not entitled to relief on this basis. 
4 

3. Alternatively, Tiffany requests remand to the district court for an 

evidentiary hearing on the issue of harmlessness. Habeas petitioners are not 

entitled to relief unless they can establish that a trial error resulted in actual 

prejudice. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (directing federal 

courts on collateral review to determine whether a trial error had a “substantial and 

injurious effect or influence on the jury’s verdict.” (internal quotations and citation 

omitted)). During Tiffany’s trial, the government presented overwhelming 

evidence of his guilt. And, on appeal, the record discloses no prejudice resulting 

from the denial of investigative funds. Because there is no basis to conclude that 

the denial of funds had a “substantial and injurious effect or influence in 

determining the jury’s verdict,” id., remand is unnecessary. 

AFFIRMED.