                                                                           FILED
                            NOT FOR PUBLICATION                              JUN 6 2011

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




                            FOR THE NINTH CIRCUIT



SOFALO MATESE BROWN,                             No. 09-17118

               Petitioner - Appellant,           D.C. No. 2:09-cv-00216-FCD-
                                                 GGH
  v.

JAMES D. HARTLEY, Warden,                        MEMORANDUM *

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Frank C. Damrell, Jr., District Judge, Presiding

                              Submitted May 24, 2011 **

Before:        PREGERSON, THOMAS, and PAEZ, Circuit Judges.

       California state prisoner Sofalo Matese Brown appeals from the district

court’s denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under

28 U.S.C. § 2253 and we affirm.




          *
             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).
      Brown contends that the state prosecutor in his criminal trial denied his

constitutional rights to due process and a fair trial by intimidating a defense

witness who chose not to testify.

      The California Court of Appeal’s determination that there was no

prosecutorial misconduct was not contrary to, or an unreasonable application of,

clearly established federal law as determined by the Supreme Court, and was not

based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d);

Penry v. Johnson, 532 U.S. 782, 792-93 (2001).

      We construe the inclusion of an uncertified issue in the opening brief as a

motion to expand the certificate of appealability. See 9th Cir. R. 22-1(e). So

construed, the motion is denied. See Hivala v. Wood, 195 F.3d 1098, 1104-05 (9th

Cir. 1999) (per curiam).

      Kathleen C. Page’s motion to withdraw as Brown’s counsel is granted. We

construe Brown’s letter dated December 31, 2010, as a motion for appointment of

new counsel, and deny the motion.

      AFFIRMED.




                                           2                                      09-17118
