                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              DEC 21 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

TY ERIK LOPES,                                   No. 09-15769

              Petitioner - Appellant,            D.C. No. 2:06-cv-01657-MCE-
                                                 CHS
  v.

ROSANNE CAMPBELL, Warden and                     MEMORANDUM*
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                  Morrison C. England, District Judge, Presiding

                     Argued and Submitted November 3, 2010
                              Stanford, California

Before: THOMAS and IKUTA, Circuit Judges, and RESTANI, Judge.**

       None of Lopes’s numerous claims to this court warrants habeas relief under

28 U.S.C. § 2254. His claims that the prosecutor illegally re-filed the rape and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jane A. Restani, Judge of the United States Court of
International Trade, sitting by designation.
special circumstance charges and the trial court erroneously denied motions under

California Penal Code § 995 and § 1118.1 are not properly before us because they

were never certified for appeal. See 28 U.S.C. § 2253(c)(1); Mendez v. Knowles,

556 F.3d 757, 770–71 (9th Cir. 2009). Furthermore, these are state law claims that

are not cognizable on federal habeas review. See § 2254(a); Estelle v. McGuire,

502 U.S. 62, 67 (1991). Lopes’s prosecutorial misconduct claim in relation to the

testimony of Officer Erb also does not support habeas relief because Lopes never

exhausted the claim by presenting it to a state court. See § 2254(b)(1); Scott v.

Schriro, 567 F.3d 573, 582 (9th Cir. 2009). We also deny this claim on the merits.

See § 2254(b)(2). Because Lopes presents no evidence that Officer Erb’s

testimony was false or that the prosecutor knew or should have known it was false,

see Napue v. Illinois, 360 U.S. 264, 265 (1959); Schad v. Ryan, 606 F.3d 1022,

1037 (9th Cir. 2010), it is “perfectly clear” that Lopes does not “raise even a

colorable federal [due process] claim,” Cassett v. Stewart, 406 F.3d 614, 624 (9th

Cir. 2005).

      Lopes’s remaining claims are meritless. Because a rational jury could have

found Josh Burroughs’s statements to the police more credible than his later

retractions of those statements, the state court’s denial of Lopes’s sufficiency of the

evidence claim was neither contrary to nor an unreasonable application of Jackson


                                          2
v. Virginia, 443 U.S. 307 (1979). See § 2254(d)(1). The state court’s denial of

Lopes’s claim under Brady v. Maryland, 373 U.S. 83 (1963), was likewise not

objectively unreasonable because a Brady violation requires a showing of

“material[ity],” id. at 87, which means “a reasonable probability” that the

suppression of the evidence affected the outcome of the trial, Strickler v. Greene,

527 U.S. 263, 281 (1999). Rather than demonstrating how the prosecutor’s

suppression of the fact that Burroughs recanted his incriminating statements

affected the outcome of his trial, Lopes admits that he learned of this impeachment

evidence at his preliminary hearing, approximately three months prior to trial, and

does not deny that he was able to use the information at trial.

      Lopes’s arguments that the state court erred in rejecting his claims of

ineffective assistance of trial and appellate counsel also lack merit. To the extent

those claims were based on counsels’ failure to pursue state remedies, we are

bound by the state court’s determination that relief was not warranted under state

law and thus that Lopes could not show prejudice from the failure. See Bradshaw

v. Richey, 546 U.S. 74, 76 (2005). With regard to Lopes’s claim that his trial

counsel should have obtained discovery on the burglary charges pending against

him in another case, the state court’s decision that Lopes’s speculation as to the

importance of that discovery failed to demonstrate “a reasonable probability that,


                                          3
but for counsel’s unprofessional errors, the result of the proceeding would have

been different,” Strickland v. Washington, 466 U.S. 668, 694 (1984), was not an

unreasonable application of Strickland. See § 2254(d)(1).

      Lopes’s claims of evidentiary and instructional error also do not warrant

habeas relief. In light of the fact that the Supreme Court has never recognized a

due process right to exclude propensity evidence at trial, see Estelle, 502 U.S. at 75

n.5, and because the admission of such evidence does not violate general principles

of due process, see Mejia v. Garcia, 534 F.3d 1036, 1046–47 (9th Cir. 2008)

(citing Loper v. Beto, 405 U.S. 473 (1972)), the state court’s denial of Lopes’s due

process claim regarding the propensity evidence testimony of Jesse Howlin was

not objectively unreasonable. The state court’s rejection of Lopes’s due process

claim regarding the hearsay testimony of Robert Remlinger was also not

objectively unreasonable, because the testimony went only to a collateral matter

and an evidentiary error can rise to the level of a due process violation only where

it “render[s] the trial fundamentally unfair.” Kealohapauole v. Shimoda, 800 F.2d

1463, 1466 (9th Cir. 1986). Finally, because the trial court gave standard jury

instructions regarding witness credibility, it was not objectively unreasonable for

the state court to conclude that the trial court’s refusal to give Lopes’s requested

perjury instruction “so infected the entire trial that the resulting conviction violates


                                           4
due process.” Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141,

147 (1973)) (internal quotation mark omitted).

      Because ineffective assistance of habeas counsel is not a basis for relief on

habeas review, see § 2254(i), and Lopes’s pro se informal brief raised no

meritorious arguments, Lopes’s “Motion Claiming Ineffective Assistance of

Appellate Counsel” is denied.

      AFFIRMED.




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