                                                                           FILED
                               NOT FOR PUBLICATION                          MAR 08 2010

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




                               FOR THE NINTH CIRCUIT



 SANTAWN ATUANYA MILLER,                           No. 07-56279

                 Petitioner - Appellant,           D.C. No. CV-05-07137-FMC

   v.
                                                   MEMORANDUM *
 ANTHONY LAMARQUE,

                 Respondent - Appellee.



                       Appeal from the United States District Court
                           for the Central District of California
                     Florence-Marie Cooper, District Judge, Presiding

                              Submitted February 16, 2010 **

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        California state prisoner Santawn Atuanya Miller appeals from the district

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

jurisdiction pursuant to 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).

DAT/Research
       Miller contends that the California Court of Appeal unreasonably applied

clearly established federal law when it determined that the trial court did not

violate his constitutional right to present a defense by excluding out-of-court

exculpatory statements by an absent witness. The district court did not err in

rejecting this argument because the exculpatory statements were unreliable and

non-inculpatory. See LaGrand v. Stewart, 133 F.3d 1253, 1266 (9th Cir. 1998);

see also Williamson v. United States, 512 U.S. 594, 601 (1994).

       Miller also argues that the California Court of Appeal unreasonably applied

clearly established federal law by determining that his due process rights were not

violated when the trial court denied his motion for a mistrial. He contends that his

right to a fair trial was violated because defense counsel referred to exculpatory

statements in his opening statement, which were later excluded from evidence.

The district court did not err in rejecting this contention. See Lincoln v. Sunn, 807

F.2d 805, 809 (9th Cir. 1987); see also Arizona v. Washington, 434 U.S. 497, 511

(1978).

       We do not address the State’s procedural default argument because Miller’s

claims are clearly without merit. See Franklin v. Johnson, 290 F.3d 1223, 1232

(9th Cir. 2002).

       AFFIRMED.


DAT/Research                               2                                      07-56279
