                                                                           FILED
                              NOT FOR PUBLICATION                           MAR 03 2010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 RAY MORRISON,                              No. 07-35681

                Petitioner - Appellant,           D.C. No. CV-06-01609-TSZ

   v.
                                                  MEMORANDUM *
 MAGGIE MILLER-STOUT,

                Respondent - Appellee.



                      Appeal from the United States District Court
                        for the Western District of Washington
                       Thomas S. Zilly, District Judge, Presiding

                             Submitted February 16, 2010 **

Before:         FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Washington state prisoner Larry Ray Morrison appeals from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. 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).

SM S/Research
       Morrison contends the trial court violated his due process rights when it

instructed the jury that the phrase “on or about January 31, 2002,” as stated in the

information, meant the charged offense could have occurred at any point in the

three years preceding the date Morrison was charged. Morrison has not shown that

the state court’s rejection of this claim was either contrary to, or an unreasonable

application of, clearly established federal law, or that it was based on an

unreasonable determination of the facts in light of the evidence presented. See 28

U.S.C. § 2254(d). Even though the supplemental instruction was erroneous under

state law, the record indicates it did not have a “‘substantial and injurious effect or

influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619,

637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see

California v. Roy, 519 U.S. 2, 4-6 (1996) (per curiam) (applying harmless error

standard to jury instructions that omit an element of the crime).

       AFFIRMED.




SMS/Research                               2                                     07-35681
