                                                                          FILED
                           NOT FOR PUBLICATION                             MAY 10 2011

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




                           FOR THE NINTH CIRCUIT



RICHARD EARL GEORGE,                            No. 09-56835

              Petitioner - Appellant,           D.C. No. 3:07-cv-02215-J-POR

  v.
                                                MEMORANDUM *
V. M. ALMAGER, Warden and
DISTRICT COURT OF CALIFORNIA,
SOUTHERN DISTRICT,

              Respondents - Appellees.



                   Appeal from the United States District Court
                     for the Southern District of California
                   Napoleon A. Jones, District Judge, Presiding

                             Submitted May 5, 2011 **
                               Pasadena, California

Before: REINHARDT and HAWKINS, Circuit Judges, and COGAN, District
Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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 Brian M. Cogan, United States District Judge for the
Eastern District of New York, sitting by designation.
      Petitioner Richard Earl George’s (“George”) argument in this 28 U.S.C. § 2254

habeas corpus petition, that the state trial court violated his due process rights by

admitting evidence of a similar prior bad act, is foreclosed by our precedent. See

Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008) (citing Alberni v. McDaniel, 458

F.3d 860 (9th Cir. 2006), cert. denied, 549 U.S. 1287 (2007)).

      Absent clear Supreme Court authority on point, even the erroneous admission

of evidence resulting in a fundamentally unfair trial may not allow the grant of habeas

relief. Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). To the extent the

Supreme Court has addressed the issue, it has expressly reserved consideration of

whether the admission of prior bad acts under state law to show propensity constitutes

a due process violation. Alberni, 458 F.3d at 864 (citing Estelle v. McGuire, 502 U.S.

62, 75 n.5 (1991)). Accordingly, the district court did not err in denying George’s

petition. Id. at 867; see also 28 U.S.C. § 2254(d)(1); Carey v. Musladin, 549 U.S. 70,

77 (2006); Holley, 568 F.3d at 1101.

      Even if we were free to consider George’s claim as alleging an error so

infecting the proceedings as to render his trial fundamentally unfair, habeas relief

would still be inappropriate as the evidence in question was relevant to a key witness’s

credibility and the jury could draw at least one permissible inference from it. See

Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (“Only if there are no


                                           2
permissible inferences the jury may draw from the evidence can its admission violate

due process.”).

      Further, because George expressly declined a limiting instruction at trial, he is

barred from arguing error in the omission of one here. See id. at n.2. He is likewise

foreclosed from arguing that the prosecutor used the prior bad acts evidence for an

impermissible purpose during closing argument – a claim he failed to raise in either

the state courts or before the district court. See Vang v. Nevada, 329 F.3d 1069,

1075-76 (9th Cir. 2003).

      AFFIRMED.




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