                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             FEB 06 2018
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARK D. FOLEY,                                   No.   15-16905

               Petitioner-Appellant,             D.C. No.
                                                 2:01-cv-00714-MCE-GGH
 v.

JAMES ROWLAND,                                   MEMORANDUM*

               Respondent-Appellee.


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

                            Submitted August 18, 2017**
                              San Francisco, California

Before: RAWLINSON and NGUYEN, Circuit Judges, and VANCE,*** 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 Sarah S. Vance, United States District Judge for the
Eastern District of Louisiana, sitting by designation.
      Mark Foley (Foley), a California state prisoner, appeals the district court’s

denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254

challenging his convictions. Foley contends that the trial court deprived him of his

right to due process and a fair trial by instructing the jury on other crimes, his

alleged discovery violation, and consideration of his courtroom demeanor as

evidence. We affirm.

      “We review a district court’s decision on a petition for writ of habeas corpus

de novo.” Hall v. Haws, 861 F.3d 977, 988 (9th Cir. 2017) (citation omitted).

“Habeas relief on a trial error claim is appropriate only if the error results in actual

prejudice. . . .” Id. at 991 (citation and internal quotation marks omitted). “Under

the [Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)] test for actual prejudice,

relief is proper only if the federal court has grave doubt about whether a trial error

of federal law had substantial and injurious effect or influence in determining the

jury’s verdict.” Id. (citation and internal quotation marks omitted).

      1. The California Court of Appeal’s rejection of Foley's claim predicated on

the admission of evidence of other crimes was not contrary to or an unreasonable

application of Supreme Court authority. See Estelle v. McGuire, 502 U.S. 62, 73-

74 (1991) (upholding an “other-offenses” instruction). In addition, the jury was

instructed that the prosecution was required to prove Foley’s guilt beyond a


                                            2
reasonable doubt. Foley has failed to demonstrate that the jury’s consideration of

his other crimes had a “substantial and injurious effect or influence” on the verdict.

Hall, 861 F.3d at 991.

      2. The Court of Appeal acknowledged that the trial court erred in instructing

the jury that the defense violated the discovery rules and that the jury could

consider the defendant's courtroom demeanor as evidence. Nevertheless, the Court

of Appeal’s denial of relief on these claims was not contrary to or an unreasonable

application of Supreme Court law. See Estelle, 502 U.S. at 75 (“[N]either the

introduction of the challenged evidence, nor the jury instruction as to its use, so

infused the trial with unfairness as to deny due process of law.”) (citations and

internal quotation marks omitted); see also Hall, 861 F.3d at 991 (requiring a

showing of a “substantial and injurious effect” on the jury verdict to warrant

habeas relief).

      Absent this showing of “actual prejudice,” Hall, 861 F.3d at 991, Foley has

failed to establish that the trial court’s other-crimes, discovery-nondisclosure, and

nontestimonial-demeanor instructions were contrary to, or involved an

unreasonable application of, clearly established Federal law. See Hedlund v. Ryan,

854 F.3d 557, 565 (9th Cir. 2017), as amended.

      AFFIRMED.


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