FILED
NOT FOR PUBLICATION MAY 10 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD EARL GEORGE, No. 09-56835
Petitioner - Appellant, D.C. No. 3:07-cv-02215-J-POR
v.
MEMORANDUM *
V. M. ALMAGER, Warden and
DISTRICT COURT OF CALIFORNIA,
SOUTHERN DISTRICT,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Napoleon A. Jones, District Judge, Presiding
Submitted May 5, 2011 **
Pasadena, California
Before: REINHARDT and HAWKINS, Circuit Judges, and COGAN, 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 Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
Petitioner Richard Earl George’s (“George”) argument in this 28 U.S.C. § 2254
habeas corpus petition, that the state trial court violated his due process rights by
admitting evidence of a similar prior bad act, is foreclosed by our precedent. See
Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (citing Alberni v. McDaniel, 458
F.3d 860 (9th Cir. 2006), cert. denied, 549 U.S. 1287 (2007)).
Absent clear Supreme Court authority on point, even the erroneous admission
of evidence resulting in a fundamentally unfair trial may not allow the grant of habeas
relief. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). To the extent the
Supreme Court has addressed the issue, it has expressly reserved consideration of
whether the admission of prior bad acts under state law to show propensity constitutes
a due process violation. Alberni, 458 F.3d at 864 (citing Estelle v. McGuire, 502 U.S.
62, 75 n.5 (1991)). Accordingly, the district court did not err in denying George’s
petition. Id. at 867; see also 28 U.S.C. § 2254(d)(1); Carey v. Musladin, 549 U.S. 70,
77 (2006); Holley, 568 F.3d at 1101.
Even if we were free to consider George’s claim as alleging an error so
infecting the proceedings as to render his trial fundamentally unfair, habeas relief
would still be inappropriate as the evidence in question was relevant to a key witness’s
credibility and the jury could draw at least one permissible inference from it. See
Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (“Only if there are no
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permissible inferences the jury may draw from the evidence can its admission violate
due process.”).
Further, because George expressly declined a limiting instruction at trial, he is
barred from arguing error in the omission of one here. See id. at n.2. He is likewise
foreclosed from arguing that the prosecutor used the prior bad acts evidence for an
impermissible purpose during closing argument – a claim he failed to raise in either
the state courts or before the district court. See Vang v. Nevada, 329 F.3d 1069,
1075-76 (9th Cir. 2003).
AFFIRMED.
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