FILED
NOT FOR PUBLICATION MAY 31 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DION WILMONT, No. 09-55988
Petitioner - Appellant, D.C. No. 2:06-cv-08232-GAF-
PLA
v.
SCOTT MCEWEN, Warden; MATTHEW MEMORANDUM *
CATE, Secretary of CDC,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding
Argued and Submitted March 5, 2013
Pasadena, California
Before: GOODWIN, WARDLAW, and GOULD, Circuit Judges.
California prisoner Dion Wilmont appeals the denial of his 28 U.S.C. § 2254
habeas corpus petition. We affirm.
Denial of a habeas petition is reviewed de novo. Parker v. Small, 665 F.3d
1143, 1147 (9th Cir. 2011) (per curiam). Under AEDPA, federal courts may grant
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
relief to state prisoners only where the state court’s adjudication of a claim on the
merits was either (1) “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” or (2) “based on an
unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C.
§ 2254(d). AEDPA review is “highly deferential.” Cullen v. Pinholster, 131 S. Ct.
1388, 1398 (2011).
The admission of the evidence of Wilmont’s previous convictions was not so
fundamentally unfair as to deny him due process because it was the anticipated
consequence of his attorney’s strategy. “[D]enial of due process is the failure to
observe that fundamental fairness essential to the very concept of justice. . . . [W]e
must find that the absence of that fairness fatally infected the trial; the acts complained
of must be of such quality as necessarily prevents a fair trial.” Lisenba v. California,
314 U.S. 219, 236 (1941). Though Wilmont argues the evidence of his prior
convictions was irrelevant, he was warned of the danger of testifying, and his counsel
was warned that if mental health experts based any part of their opinions on
Wilmont’s criminal record, all of Wilmont’s criminal history would be available to
the jury after cross-examination. We cannot say the California Court of Appeal’s
conclusion that Wilmont’s due process rights were not violated was contrary to, or an
unreasonable application of, federal law.
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As to the challenged jury instructions, habeas relief based upon trial error is not
available where the error is harmless. Brecht v. Abrahamson, 507 U.S. 619, 637-38
(1993). Even if the California Court of Appeal incorrectly approved of the flight
instruction, the district court’s decision to give the instruction was harmless error. As
to the failure-to-explain instruction, the state court explicitly found harmless error.
We agree with that conclusion. Thus, in both cases, the state court adjudication was
not contrary to, or an unreasonable application of, federal law.
Similarly, to warrant reversal under AEDPA, comments by a prosecutor must
“so infect[] the trial with unfairness as to make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). The California Court of
Appeal found no pattern of egregious conduct rising to the level of a due process
violation. The Court of Appeal’s conclusion that a single reference to Wilmont as a
“con-wise” individual who had served prison time did not violate Wilmont’s right to
due process was neither contrary to, nor an unreasonable application of, federal law.
Because any prosecutorial misconduct was harmless, the failure to object by
defense counsel does not rise to ineffective assistance. Strickland v. Washington, 466
U.S. 668, 687 (1984). Finally, the cumulative effect of any error here did not result
in a due process violation. Brecht, 507 U.S. at 637-38.
AFFIRMED.
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