FILED
NOT FOR PUBLICATION
FEB 06 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK D. FOLEY, No. 15-16905
Petitioner-Appellant, D.C. No.
2:01-cv-00714-MCE-GGH
v.
JAMES ROWLAND, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted August 18, 2017**
San Francisco, California
Before: RAWLINSON and NGUYEN, Circuit Judges, and VANCE,*** 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 Sarah S. Vance, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
Mark Foley (Foley), a California state prisoner, appeals the district court’s
denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254
challenging his convictions. Foley contends that the trial court deprived him of his
right to due process and a fair trial by instructing the jury on other crimes, his
alleged discovery violation, and consideration of his courtroom demeanor as
evidence. We affirm.
“We review a district court’s decision on a petition for writ of habeas corpus
de novo.” Hall v. Haws, 861 F.3d 977, 988 (9th Cir. 2017) (citation omitted).
“Habeas relief on a trial error claim is appropriate only if the error results in actual
prejudice. . . .” Id. at 991 (citation and internal quotation marks omitted). “Under
the [Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)] test for actual prejudice,
relief is proper only if the federal court has grave doubt about whether a trial error
of federal law had substantial and injurious effect or influence in determining the
jury’s verdict.” Id. (citation and internal quotation marks omitted).
1. The California Court of Appeal’s rejection of Foley's claim predicated on
the admission of evidence of other crimes was not contrary to or an unreasonable
application of Supreme Court authority. See Estelle v. McGuire, 502 U.S. 62, 73-
74 (1991) (upholding an “other-offenses” instruction). In addition, the jury was
instructed that the prosecution was required to prove Foley’s guilt beyond a
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reasonable doubt. Foley has failed to demonstrate that the jury’s consideration of
his other crimes had a “substantial and injurious effect or influence” on the verdict.
Hall, 861 F.3d at 991.
2. The Court of Appeal acknowledged that the trial court erred in instructing
the jury that the defense violated the discovery rules and that the jury could
consider the defendant's courtroom demeanor as evidence. Nevertheless, the Court
of Appeal’s denial of relief on these claims was not contrary to or an unreasonable
application of Supreme Court law. See Estelle, 502 U.S. at 75 (“[N]either the
introduction of the challenged evidence, nor the jury instruction as to its use, so
infused the trial with unfairness as to deny due process of law.”) (citations and
internal quotation marks omitted); see also Hall, 861 F.3d at 991 (requiring a
showing of a “substantial and injurious effect” on the jury verdict to warrant
habeas relief).
Absent this showing of “actual prejudice,” Hall, 861 F.3d at 991, Foley has
failed to establish that the trial court’s other-crimes, discovery-nondisclosure, and
nontestimonial-demeanor instructions were contrary to, or involved an
unreasonable application of, clearly established Federal law. See Hedlund v. Ryan,
854 F.3d 557, 565 (9th Cir. 2017), as amended.
AFFIRMED.
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