                                                                           FILED
                           NOT FOR PUBLICATION                                OCT 24 2011

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




                            FOR THE NINTH CIRCUIT



MARK EDDIE McKENZIE,                             No. 08-17448

              Petitioner - Appellant,            D.C. No. 1:06-cv-00450-ALA

  v.
                                                 MEMORANDUM *
JAMES A. YATES, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Arthur L. Alarcón, Circuit Judge, Presiding

                     Argued and Submitted September 1, 2011
                            San Francisco, California

Before:       WALLACE, BERZON and BYBEE, Circuit Judges.

       California state prisoner McKenzie appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

under 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.
      McKenzie contends that his constitutional right to due process was violated

when, during voir dire, the judge stated that he would have the discretion to grant

probation and the prosecutor stated that the court could reduce the offense to a

misdemeanor. Because McKenzie does not show that the California Court of

Appeal’s decision rejecting McKenzie’s contentions was contrary to or an

unreasonable application of Supreme Court precedent, the district court did not err

in denying the petition. See 28 U.S.C. § 2254(d)(1). Further, McKenzie’s trial was

not “so fundamentally unfair” that it denied McKenzie due process under Donnelly

v. DeChristoforo, 416 U.S. 637, 645 (1974).

      AFFIRMED.




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