                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 03 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 BRUCE ERIC SMITH,                               No. 07-36047

               Petitioner - Appellant,           D.C. No. CV-06-05678-RJB

   v.
                                                 MEMORANDUM *
 JEFFERY UTTECHT,

               Respondent - Appellee.



                     Appeal from the United States District Court
                       for the Western District of Washington
                      Robert J. Bryan, District Judge, Presiding

                            Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Washington state prisoner Bruce Eric Smith appeals from the district court’s

dismissal of his 28 U.S.C. § 2254 habeas petition challenging his jury conviction




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

AH/Research
for first degree rape, first degree murder, and first degree burglary. We have

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

       Smith contends that his due process rights were violated when the trial court

permitted the arresting officers to testify about their observations regarding

Smith’s post-arrest physical condition. Specifically, Smith contends that the

officers impermissibly testified about his unresponsiveness, in violation of

Wainwright v. Greenfield, 474 U.S. 384 (1986). The record reflects that any

alleged error is harmless because it did not have a “substantial and injurious effect

or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.

619, 623 (1993) (internal quotations omitted).

       AFFIRMED.




AH/Research                                                                      07-36047
