                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 27 2010

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




                            FOR THE NINTH CIRCUIT



SOUNTHONE VIET KATEKEO,                          No. 09-16642

               Petitioner - Appellant,           D.C. No. 2:08-cv-02776-JAM

  v.
                                                 MEMORANDUM *
T. FELKER, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                            Submitted October 19, 2010 **

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       California state prisoner Sounthone Viet Katekeo appeals pro se from the

district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

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

       Katekeo contends that the trial court improperly denied his motion to

          *
             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).
substitute counsel, made pursuant to People v. Marsden, 465 P.2d 44 (1970). The

state court decision affirming the trial court’s denial of Katekeo’s Marsden motion

was not contrary to, and did not involve an unreasonable application of clearly

established federal law. See 28 U.S.C. § 2254(d)(1); Schell v. Wittek, 218 F.3d

1017, 1026-28 (9th Cir. 2000) (en banc).

      Katekeo also contends that the trial court violated his right to due process by

denying his motion for a continuance. The record reflects that the trial court’s

denial of the continuance was not “so arbitrary as to violate due process.” See

Ungar v. Sarafite, 376 U.S. 575, 589 (1964).

      Finally, Katekeo contends that the trial court’s erroneous admission of

evidence of his gang affiliation violated his right to due process. The state court’s

determination that the error was harmless was not contrary to, and did not involve

an unreasonable application of, clearly established federal law, as determined by

the Supreme Court of the United States. See Brecht v. Abrahamson, 507 U.S. 619,

636-638 (1993) (on collateral review, the question is whether the error had a

“substantial and injurious effect or influence in determining the jury’s verdict”),

see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (in § 2254 proceedings, the

prejudicial impact of constitutional error in a state-court trial must be assessed

under the Brecht standard).


                                           2                                     09-16642
      We construe Katekeo’s additional arguments as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per

curiam).

      AFFIRMED.




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