                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 17 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DAVID HERNANDEZ,                                 No. 09-15370

              Petitioner - Appellant,            D.C. No. 2:04-cv-00280-GEB-
                                                 GGH
  v.

JOSEPH MCGRATH,                                  MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                       Argued and Submitted May 12, 2010
                            San Francisco, California

Before: SILVERMAN, FISHER and M. SMITH, Circuit Judges.

       David Hernandez appeals the district court’s partial denial of his 28 U.S.C. §

2254 habeas corpus petition challenging his California convictions and sentences

arising from two gang shootings. We have jurisdiction pursuant to 28 U.S.C. §§



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1291 and 2253. We review the district court’s denial of the petition de novo,

Fernandez v. Roe, 286 F.3d 1073, 1076 (9th Cir. 2002), and affirm.

      Petitioner asserts that the California Court of Appeal unreasonably applied

Chapman v. California, 386 U.S. 18 (1967), by holding that a discovery sanction

imposed on the petitioner was harmless beyond a reasonable doubt. The California

Court of Appeal did not unreasonably hold that any error in connection with the

sanction was harmless beyond a reasonable doubt; the evidence of guilt was very

strong and the alibi defense highly dubious, if not demonstrably false.

      For the same reasons, the Court of Appeal did not unreasonably apply

Strickland v. Washington, 466 U.S. 668 (1984), by holding that defense counsel’s

conduct giving rise to the sanctions did not prejudice the defendant, and therefore

did not amount to ineffective assistance of counsel.

      Petitioner argues that the California Court of Appeal unreasonably applied

Darden v. Wainwright, 477 U.S. 168 (1986), with respect to the claim that the

prosecutor committed misconduct by referring to excluded evidence during his

closing argument. The California Court of Appeal reasonably rejected the claim

because the prosecutor’s statement was vague and singular; the trial court

immediately instructed the jury to disregard the statement; and there was

overwhelming admissible evidence of petitioner’s gang activities.


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      Finally, petitioner argues that the California Court of Appeal unreasonably

applied Montana v. Egelhoff, 518 U.S. 37 (1996), by holding that the trial court did

not violate due process by excluding a dying declaration that was purportedly

relevant to rebut petitioner’s motive. In light of all of the other evidence of gang

motives for both shootings, including the gang-related statements made before both

shootings in this case, the Court of Appeal reasonably concluded that the

exculpatory value of the dying declaration was low, and its exclusion did not

violate due process.

      AFFIRMED.




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