                                                                             FILED
                            NOT FOR PUBLICATION                               APR 28 2010

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




                             FOR THE NINTH CIRCUIT

ROBERT JONATHEN BAILEY,                           No. 08-16477

              Petitioner - Appellant,             D.C. No. 2:06-CV-00467-MCE-
                                                  GGH
  v.

RICHARD KIRKLAND,                                 MEMORANDUM *

              Respondent - Appellee.



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

                              Submitted April 6, 2010 **

Before: SKOPIL, FARRIS and LEAVY, Circuit Judges.

       Robert Bailey, a California state prisoner, appeals the district court’s denial

of his 28 U.S.C. § 2254 petition alleging he was denied his constitutional right to

testify at his trial in state court. We have jurisdiction pursuant to 28 U.S.C. § 2253,

and we affirm.


        *
             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).
                                    DISCUSSION

      Bailey claims the state court violated his constitutional right to testify even

though his request came after the close of evidence and after the jury had been

instructed on the elements of the crimes charged. Our review of his claim is

defined by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).

See Christian v. Frank, 595 F.3d 1076, 1080 (9th Cir. 2010). Under AEDPA, we

may not grant relief unless the state court’s decision “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).

      We conclude the state court’s decision is neither contrary to nor an

unreasonable application of federal law. Although the right to testify at a criminal

trial is well-established, the right is not without limitation and “may, in appropriate

cases, bow to accommodate other legitimate interests in the criminal trial process.”

Rock v. Arkansas, 483 U.S. 44, 55 (1987) (internal quotation marks omitted). The

state court did not cite to Rock, but it did acknowledge that the Supreme Court has

developed a “body of decisional law regarding a criminal defendant’s right to

testify.” Moreover, the state court is not required to cite to federal authority or

even indicate an awareness of federal law, as long as its decision is not contrary to

established Supreme Court authority. See Early v. Packer, 537 U.S. 3, 8 (2002).


                                          -2-
      Bailey complains the state court relied on inapposite state law to determine

whether his request should have been granted. Although the case cited by the state

court, People v. Jones, 30 Cal.4th 1084 (2003), did not involve a defendant’s

request to testify, it does set forth the type of concerns noted in Rock, specifically

whether “other legitimate interests in the criminal trial process” might trump an

individual’s exercise of a constitutional right. See Rock, 483 U.S. at 55 (internal

quotation marks omitted). The state court’s consideration of those concerns is not

an unreasonable application of federal law.

      Bailey contends the denial of his request to testify was arbitrary and

disproportionate to the purpose of accommodating other legitimate interests in

violation of the directive set forth in Rock, 483 U.S. at 56. He submits that his

testimony would have posed only minimal inconvenience and delay and would not

have prejudiced the prosecution. We agree, however, with the state court that

Bailey’s testimony might have required new instructions, additional testimony, and

a change in the prosecution’s theory of the case. Bailey complains that it is

unreasonable to speculate as to the import of his testimony, but the record indicates

he did not make an offer of proof and he later refused to waive his client-attorney

privilege that would have permitted his trial attorney to testify.




                                           -3-
      The district court did not err by denying Bailey’s § 2254 petition. Contrary

to Bailey’s assertion, United States v. Pino-Noriega, 189 F.3d 1089 (9th Cir.

1999), does not compel a contrary result. There, we held that a defendant “waived

his right to testify by waiting until after the jury had reached a verdict to inform the

court that he wanted to testify.” Pino-Noriega, 189 F.3d at 1096. Bailey can only

point out that his request to testify came earlier in the proceedings and that Pino-

Noriega states that whether it would be too late if the right were asserted “at any

earlier point in time is another question for another day.” Id. We agree with the

state court and the federal district court that Bailey’s request came too late.

       Bailey also relies on Gill v. Ayers, 342 F.3d 911 (9th Cir. 2003), where we

held that a defendant has a constitutional right to testify at his sentencing hearing.

We reasoned a state court’s restriction on such testimony created an arbitrary

process that could not be justified in light of the importance of the right to testify in

one’s own behalf. Gill, 342 F.3d at 920. In contrast, Bailey was not barred from

testifying at this trial, and indeed, he expressly waived that right. It is not arbitrary

to require a defendant to exercise his right to testify before the evidence is closed

and the jury is instructed.

      AFFIRMED.




                                           -4-
