                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 29 2010

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




                            FOR THE NINTH CIRCUIT



LARRY JOSEPH THOMAS,                             No. 08-15594

             Petitioner - Appellant,             D.C. No. 04-CV-00733-MCE

  v.
                                                 MEMORANDUM *
A. K. SCRIBNER; JO GRAVES; V.
YAMAMOTO; ARNOLD
SCHWARZENEGGER,

             Respondents - Appellees,




                   Appeal from the United States District Court
                      for the Eastern District of California
                  Morrison C. England, District Judge, Presiding

                        Argued and Submitted June 15, 2010
                             San Francisco, California

Before: SCHROEDER and BYBEE, Circuit Judges, and GONZALEZ, Chief
District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Irma E. Gonzalez, Chief United States District Judge
for the Southern District of California, sitting by designation.
      Larry Joseph Thomas, a California state prisoner, appeals the district court’s

denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury

conviction of battery on a non-prisoner by a prison inmate and aggravated assault

by a non-life prisoner. We affirm.1

      The prosecutor did not commit misconduct by failing to inform the trial

court that Thomas’s prior conviction for second degree burglary was not a crime

that could be counted as a strike because it had been allegedly reduced to a lesser

offense.2 Prosecutorial misconduct rises to the level of a constitutional violation

only where it “‘so infected the trial with unfairness as to make the resulting

conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181

(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). In the present

case, however, there is simply no basis in the record to suggest that the prosecutor

misstated the evidence. Rather, the prosecutor merely argued, consistent with the

documentary evidence, that Thomas was convicted in 1983 of a residential

burglary in the second degree, which is a “serious felony.” See C AL. P ENAL C ODE §



      1
        Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our disposition.
      2
        Although this claim is unexhausted. we deny it on the merits pursuant to 28
U.S.C. § 2254(b)(2) because it does not raise “even a colorable federal claim.”
Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir. 2005).

                                          -2-
1192.7(c)(18) (1997). Moreover, Thomas cannot demonstrate any “actual

prejudice” from the prosecutor’s failure to bring this issue to the court’s attention.

See Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993).

      Neither was Thomas entitled to an evidentiary hearing regarding the nature

of his prior conviction because he “failed to develop the factual basis of [his] claim

in State court proceedings,” see 28 U.S.C. § 2254(e)(2), and because he cannot

otherwise meet AEDPA’s other “stringent requirements.” See Williams v. Taylor,

529 U.S. 420, 437 (2000).

      Finally, by omitting from his amended petition the claim that the state

court’s failure to conduct a competency hearing during the trial rendered his trial

fundamentally unfair, Thomas waived that claim. See King v. Atiyeh, 814 F.2d 565,

567 (9th Cir. 1987). To the extent Thomas’s competency hearing claim was not

waived, any remand would be futile. The California Court of Appeal for the Third

Appellate District dealt extensively with this issue when it found that the trial court

did not abuse its discretion in concluding that insufficient evidence had been

presented to trigger a competency hearing, and that determination was neither

“contrary to, [n]or involved an unreasonable application of, clearly established

Federal law.” 28 U.S.C. § 2254(d)(1).

      AFFIRMED.


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