                                                                             FILED
                                 NOT FOR PUBLICATION                          JAN 19 2011

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



                                 FOR THE NINTH CIRCUIT

 JEFFREY LEE DUVARDO,                                    No. 09-15283

             Petitioner - Appellant,                     D.C. No. 3:05-cv-05428-MHP

  v.                                                     MEMORANDUM*

 GEORGE GIURBINO,

            Respondent - Appellee.




                     Appeal from the United States District Court
                         for the Northern District of California
                    Marilyn H. Patel, Senior District Judge, Presiding

                        Argued and Submitted December 6, 2010
                               San Francisco, California

Before: COWEN,** TASHIMA and SILVERMAN, Circuit Judges.




       *
         This disposition is not appropriate for publication and is not precedent except
as provided by 9th Cir. R. 36-3.
       **
          The Honorable Robert E. Cowen, Senior United States Circuit Judge for
the Third Circuit, sitting by designation.
         Jeffrey Lee Duvardo, who is currently serving two concurrent terms of life

imprisonment for murdering his parents, appeals from the District Court’s denial of

his 28 U.S.C. § 2254 petition. We will affirm.

         The District Court properly disposed of Duvardo’s evidentiary insufficiency

claim. See, e.g., Jackson v. Virginia, 443 U.S. 307, 324 (1979); Briceno v.

Scribner, 555 F.3d 1069, 1078 (9th Cir. 2009). In light of the evidence actually

presented at trial (including, among other things, a towel found in the parents’

master bathroom sink stained with Duvardo’s own blood), the California Court of

Appeal reasonably applied United States Supreme Court precedent in determining

that a rational trier of fact could have found proof of guilt beyond a reasonable

doubt.

         We likewise agree with the District Court’s rejection of Duvardo’s due

process challenge to the testimony of Supervising Special Agent Mark Safarik

from the FBI’s Behavioral Analysis Unit. “Under AEDPA, even clearly erroneous

admissions of evidence that render a trial fundamentally unfair may not permit the

grant of federal habeas relief if not forbidden by ‘clearly established Federal law,’

as laid out by the Supreme Court.” Holley v. Yarborough, 568 F.3d 1091, 1101

(9th Cir. 2009) (quoting 28 U.S.C. § 2254(d)). The Supreme Court “has not yet

made a clear ruling that admission of irrelevant or overtly prejudicial evidence

                                           2
constitutes a due process violation sufficient to warrant issuance of the writ.” Id.

It also has never held that the admission of expert testimony on an ultimate issue to

be resolved by the trier of fact violates the Due Process Clause. See, e.g., Moses v.

Payne, 555 F.3d 742, 761-62 (9th Cir. 2009). It further appears that Agent Safarik

did not expressly or directly identify Duvardo as the actual killer in his testimony

(and, on the contrary, told the jury that he never identifies a particular offender).

      Finally, Duvardo claims that his due process rights were violated because of

the admission of purportedly irrelevant yet prejudicial bigamy evidence. We have

previously indicated that the United States Supreme Court has not yet ruled on the

specific question of whether the admission of propensity evidence violates the Due

Process Clause (and, on the contrary, has expressly refrained from deciding this

question). See, e.g., Alberni v. McDaniel, 458 F.3d 860, 863-67 (9th Cir. 2006).

In any case, it appears that the California Court of Appeal reasonably determined

that the bigamy evidence was admissible to show motive, and the District Court

appropriately determined that any error here would have been harmless because

this evidence did not have a substantial and injurious effect on the jury’s verdict.

See, e.g., Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007).

      AFFIRMED.




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