                                                                            FILED
                            NOT FOR PUBLICATION                              JUN 12 2014

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



                            FOR THE NINTH CIRCUIT


SERGIO OCTAVIO PENA,                              No. 11-15003

              Petitioner - Appellant,             D.C. No. 4:07-cv-02119-PJH

  v.
                                                  MEMORANDUM*
JAMES E. TILTON, in his capacity as
Head of the California Department of
Corrections,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                    Phyllis J. Hamilton, District Judge, Presiding

                             Submitted June 10, 2014**
                              San Francisco, California

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

       Sergio Octavio Pena appeals the district court’s denial of his petition for

habeas corpus, brought pursuant to 28 U.S.C. § 2254.


        *
             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).
      Pena first argues that the state court’s determination that the admission of

gang-related evidence did not violate his federal due process rights was contrary to

clearly established federal law. But the Supreme Court has never issued a “clear

ruling that admission of irrelevant or overtly prejudicial evidence constitutes a due

process violation sufficient to warrant issuance of the writ.” Holley v. Yarborough,

568 F.3d 1091, 1101 (9th Cir. 2009). Dawson v. Delaware held that the admission

of sanitized gang evidence during sentencing violated the First Amendment. 503

U.S. 159, 168 (1992). So there was no clearly established federal law for the state

court’s determination to contravene.

      Pena next contends that the state trial court’s failure to provide certain jury

instructions violated his rights to a jury trial and to due process. He does not

dispute, however, that he procedurally defaulted this claim.

      To excuse his procedural default, Pena maintains that his appellate counsel

rendered ineffective assistance by failing to raise the issue on direct appeal. There

is, at least, a reasonable argument that appellate counsel’s decision—to omit a

weak issue that would have undermined Pena’s primary argument on appeal—was

not constitutionally unreasonable. See Miller v. Keeney, 882 F.2d 1428, 1434 (9th

Cir. 1989). Given the “doubly” deferential standard of review, Harrington v.




                                           2
Richter, 131 S. Ct. 770, 788 (2011), we cannot say that the state court

unreasonably applied Strickland v. Washington, 466 U.S. 668 (1984).

      Because Pena cannot demonstrate cause to excuse his procedural default, we

will not review the jury instruction issue. See Coleman v. Thompson, 501 U.S.

722, 729–30 (1991).1

      AFFIRMED.




      1
      We decline to address Pena’s uncertified cumulative error argument. See
28 U.S.C. § 2253(c); Hiivala v. Wood, 195 F.3d 1098, 1104–05 (9th Cir. 1999).

                                          3
