                                                                           FILED
                           NOT FOR PUBLICATION                              MAY 31 2013

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




                            FOR THE NINTH CIRCUIT



DION WILMONT,                                    No. 09-55988

              Petitioner - Appellant,            D.C. No. 2:06-cv-08232-GAF-
                                                 PLA
  v.

SCOTT MCEWEN, Warden; MATTHEW                    MEMORANDUM *
CATE, Secretary of CDC,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                       Argued and Submitted March 5, 2013
                              Pasadena, California

Before: GOODWIN, WARDLAW, and GOULD, Circuit Judges.

       California prisoner Dion Wilmont appeals the denial of his 28 U.S.C. § 2254

habeas corpus petition. We affirm.

       Denial of a habeas petition is reviewed de novo. Parker v. Small, 665 F.3d

1143, 1147 (9th Cir. 2011) (per curiam). Under AEDPA, federal courts may grant


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
relief to state prisoners only where the state court’s adjudication of a claim on the

merits was either (1) “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court,” or (2) “based on an

unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C.

§ 2254(d). AEDPA review is “highly deferential.” Cullen v. Pinholster, 131 S. Ct.

1388, 1398 (2011).

       The admission of the evidence of Wilmont’s previous convictions was not so

fundamentally unfair as to deny him due process because it was the anticipated

consequence of his attorney’s strategy. “[D]enial of due process is the failure to

observe that fundamental fairness essential to the very concept of justice. . . . [W]e

must find that the absence of that fairness fatally infected the trial; the acts complained

of must be of such quality as necessarily prevents a fair trial.” Lisenba v. California,

314 U.S. 219, 236 (1941).        Though Wilmont argues the evidence of his prior

convictions was irrelevant, he was warned of the danger of testifying, and his counsel

was warned that if mental health experts based any part of their opinions on

Wilmont’s criminal record, all of Wilmont’s criminal history would be available to

the jury after cross-examination. We cannot say the California Court of Appeal’s

conclusion that Wilmont’s due process rights were not violated was contrary to, or an

unreasonable application of, federal law.


                                            -2-
      As to the challenged jury instructions, habeas relief based upon trial error is not

available where the error is harmless. Brecht v. Abrahamson, 507 U.S. 619, 637-38

(1993). Even if the California Court of Appeal incorrectly approved of the flight

instruction, the district court’s decision to give the instruction was harmless error. As

to the failure-to-explain instruction, the state court explicitly found harmless error.

We agree with that conclusion. Thus, in both cases, the state court adjudication was

not contrary to, or an unreasonable application of, federal law.

      Similarly, to warrant reversal under AEDPA, comments by a prosecutor must

“so infect[] the trial with unfairness as to make the resulting conviction a denial of due

process.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). The California Court of

Appeal found no pattern of egregious conduct rising to the level of a due process

violation. The Court of Appeal’s conclusion that a single reference to Wilmont as a

“con-wise” individual who had served prison time did not violate Wilmont’s right to

due process was neither contrary to, nor an unreasonable application of, federal law.

      Because any prosecutorial misconduct was harmless, the failure to object by

defense counsel does not rise to ineffective assistance. Strickland v. Washington, 466

U.S. 668, 687 (1984). Finally, the cumulative effect of any error here did not result

in a due process violation. Brecht, 507 U.S. at 637-38.

      AFFIRMED.


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