                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                           FILED
                           FOR THE NINTH CIRCUIT                              JAN 27 2010

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

DALRICK AION HENRY,                             No. 08-55189

             Petitioner - Appellant,            D.C. No. CV-05-06964-PSG

       v.
                                                MEMORANDUM *
KATHY MENDOZA-POWERS,

             Respondent - Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                   Philip S. Gutierrez, District Judge, Presiding

                     Argued and Submitted January 15, 2010
                              Pasadena, California

Before: GOODWIN, SCHROEDER and FISHER, Circuit Judges.

      Dalrick Aion Henry appeals the denial of his petition for a writ of habeas

corpus. We review the district court’s decision de novo. Burnett v. Lampert, 432

F.3d 996, 997 (9th Cir. 2005). Because Henry’s petition was filed after the Anti-

Terrorism and Effective Death Penalty Act (“AEDPA”) became effective we apply


        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the deference AEDPA demands when a state court has previously resolved a claim

on the merits. See 28 U.S.C. § 2254.

      First, Henry alleges that his conviction violated the Constitution because his

counsel failed to request and the trial court failed to give an accomplice testimony

instruction pursuant to California Penal Code section 1111. Even if there were

clearly established federal law, as determined by the Supreme Court of the United

States, making a conviction based on uncorroborated accomplice testimony

unlawful, see 28 U.S.C. § 2254(d)(1), none of Henry’s several challenges to this

alleged error warrant habeas relief because any error arising from the absence of

the instruction was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637-38

(1993); Henderson v. Kibbe, 431 U.S. 145, 154-55 (1977); Laboa v. Calderon, 224

F.3d 972, 979-80 (9th Cir. 2000).

      Second, Henry alleges that his trial counsel provided ineffective assistance

by failing to object when the prosecutor questioned Henry about the veracity of

other witnesses. The California Court of Appeal denied this claim on the merits,

holding that Henry had failed to demonstrate that his trial counsel’s performance

fell “below an objective standard of reasonableness” in light of “prevailing

professional norms.” See Strickland v. Washington, 466 U.S. 668, 687-88 (1984).




                                          2
The state court identified the correct legal standard and did not apply it in an

objectively unreasonable way. See Lockyer v. Andrade, 538 U.S. 63, 73-75 (2003).

      Third, Henry seeks an expanded certificate of appealability to challenge the

trial court’s decision to require additional foundation before certain evidence could

be admitted. The district court rejected this claim, and we deny Henry’s request

because he has failed to establish that “‘reasonable jurists would find the district

court’s assessment of the constitutional claims debatable or wrong.’” Miller-El v.

Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484

(2000)).

      AFFIRMED.




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