                                                                           FILED
                           NOT FOR PUBLICATION                              MAR 19 2012

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




                            FOR THE NINTH CIRCUIT



STEPHEN W. GREEL,                                No. 10-16847

              Petitioner - Appellant,            D.C. No. 4:08-cv-04474-CW

  v.
                                                 MEMORANDUM *
MICHAEL MARTEL, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                    Claudia A. Wilken, District Judge, Presiding

                            Submitted March 15, 2012 **
                             San Francisco, California

Before: McKEOWN, M. SMITH, Circuit Judges, and ROTHSTEIN, District
Judge***




         *
             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).
       ***
             The Honorable Barbara J. Rothstein, Senior United States District
Judge for the Western District of Washington, sitting by designation.
      Stephen Greel appeals an order from the district court denying his petition

for a writ of habeas corpus. He argues that the trial court improperly admitted

propensity and other prejudicial evidence and that there was insufficient evidence

to convict him of kidnapping to commit rape, both alleged errors in violation of his

due process rights. A court reviewing a habeas petition considers the last reasoned

opinion of the state court, in this case that of the California Court of Appeal. See

Womack v. Del Papa, 497 F.3d 998, 1002 (9th Cir. 2007). We have jurisdiction

pursuant to 28 U.S.C. §§ 1291 and 2253. The facts of this case are known to the

parties. We need not repeat them here.

      This court reviews de novo a district court’s denial of a writ of habeas

corpus and may affirm the judgment on any ground supported in the record.

Martinez-Villareal v. Lewis, 80 F.3d 1301, 1305 (9th Cir. 1996). Because Greel

filed his petition after April 24, 1996, the Antiterrorism and Effective Death

Penalty Act (AEDPA) applies. See Greenway v. Schriro, 653 F.3d 790, 797 (9th

Cir. 2011). Under AEDPA, a reviewing court considers whether the state court’s

adjudication of a claim was “contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1).




                                     Page 2 of 4
      Ninth Circuit precedent “squarely forecloses [the] argument” that admission

of evidence of sexual misconduct to show propensity violates due process. See

Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008). Greel is unable to identify

Supreme Court case law clearly establishing this principle such that would justify

issuing the writ.

      There is likewise no clearly established federal law that admitting prejudicial

evidence violates due process. See Holley v. Yarborough, 568 F.3d 1091, 1101

(9th Cir. 2009). Greel argues that we should infer this specific protection for

criminal defendants from the Supreme Court’s cases holding that errors that

undermine the fundamental fairness of a criminal trial justify granting the writ.

See, e.g., Williams v. Taylor, 529 U.S. 362, 375 (2000); Estelle v. McGuire, 502

U.S. 62, 70 (1991). But “[u]nder AEDPA, even clearly erroneous admissions of

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

federal habeas corpus relief if not forbidden by ‘clearly established Federal law,’ as

laid out by the Supreme Court.” Holley, 568 F.3d at 1101 (quoting 28 U.S.C. §

2254(d)). The Supreme Court has made no such ruling with regard to prejudicial

evidence, id., and thus we may not issue the writ.

      We construe the briefed but uncertified claim that insufficient evidence

supports Greel’s conviction of kidnapping to commit rape as a motion to expand


                                     Page 3 of 4
the certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22–1(e).

      AFFIRMED.




                                     Page 4 of 4
