                                                                            FILED
                            NOT FOR PUBLICATION                              OCT 26 2010

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




                            FOR THE NINTH CIRCUIT



JOEL MILES WHITE,                                No. 08-35916

              Petitioner - Appellant,            D.C. No. CV-08-81-BLG-RFC-
                                                 CSO
  v.

SAM LAW et al.,                                  MEMORANDUM *

              Respondents - Appellees.



                   Appeal from the United States District Court
                            for the District of Montana
                 Richard F. Cebull, Chief District Judge, Presiding

                       Argued and Submitted October 4, 2010
                               Seattle, Washington

Before: THOMAS and M. SMITH, Circuit Judges, and EZRA, District Judge.**

       Montana state prisoner Joel Miles White appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas petition. White argues on appeal that the trial court’s

exclusion of the victim’s prior threats presents a colorable federal claim and


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable David Alan Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
therefore the district court erred in denying his unexhausted habeas petition on the

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

       “A state court’s evidentiary ruling is grounds for federal habeas corpus relief

only if it renders the state proceeding so fundamentally unfair as to violate due

process.” Bueno v. Hallahan, 988 F.2d 86, 87 (9th Cir. 1993) (citing Jammal v.

Van de Kamp, 926 F.2d 918, 919–20 (9th Cir. 1991)). We evaluate the following

five factors to determine whether exclusion of evidence gives rise to a

constitutional violation: “(1) the probative value of the excluded evidence on the

central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of

fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5)

whether it constitutes a major part of the attempted defense.” Tinsley v. Borg, 895

F.2d 520, 530 (9th Cir. 1990). “We must then balance the importance of the

evidence against the state interest in exclusion.” Id.

       White has failed to show that the trial court’s exclusion of the victim’s prior

threats violated due process. The prior threats occurred well before the killing, are

of limited probative value, and did not constitute a major part of White’s defense.

This is especially true because White testified fully at trial, and the prior threats are

marginally probative in comparison with White’s testimony. Furthermore, the

evidence against White was overwhelming.


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      Accordingly, we conclude that the trial court’s exclusion of the victim’s

prior threats was not contrary to or an unreasonable application of federal law.

Although this claim is unexhausted, we deny it on the merits pursuant to 28 U.S.C.

§ 2254(b)(2) because it is “perfectly clear that the applicant does not raise even a

colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 623–24 (9th Cir. 2005).

      White also asserts that the district court should have denied his unexhausted

habeas petition without prejudice, rather than on the merits, so that he could either

return to state court to exhaust his claims or amend his petition to include his

exhausted jury contamination claim. We construe White’s additional argument 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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