                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 22 2010

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




                            FOR THE NINTH CIRCUIT



ROGER KIM FAIRCHILD,                             No. 07-35388

              Petitioner - Appellant,            D.C. No. CV-99-00338-BLW

  v.
                                                 MEMORANDUM *
LARRY WRIGHT, Warden, South Idaho
Correctional Inst.,

              Respondent - Appellee.



                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                            Submitted January 12, 2010 **
                                Seattle, Washington

Before: KLEINFELD, TASHIMA and TALLMAN, Circuit Judges.

       Roger Kim Fairchild, an Idaho state prisoner, appeals the district court’s

denial of his habeas corpus petitioner. We have jurisdiction under 28 U.S.C. §

2253(a). We affirm.

        *
             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).
      We review de novo the district court’s denial of a petition for habeas corpus.

Lewis v. Mayle, 391 F.3d 989, 995 (9th Cir. 2004). Because Fairchild filed his

federal habeas petition in 1999, the Antiterrorism and Effective Death Penalty Act

of 1996 (“AEDPA”) governs Fairchild’s claims. 28 U.S.C. 2254(d)(1); see also

Penry v. Johnson, 532 U.S. 782, 792 (2001).

      Under AEDPA, a federal court may not grant a state prisoner’s habeas

petition with respect to any claim adjudicated on the merits unless the relevant

state-court decision (1) “was contrary to, or involved an unreasonable application

of, clearly established Federal law, as determined by the Supreme Court of the

United States” or (2) “was based on an unreasonable determination of the facts in

light of the evidence presented in the State court proceeding.” 28 U.S.C. §2254(d).

In order to establish that a state court decision is “contrary to … clearly

established Federal Law, as determined by the Supreme Court” the petitioner must

either show that the state court applied “a rule that contradicts the governing law

set forth in [Supreme Court] cases” or that the state court confronted “a set of facts

that are materially indistinguishable from a decision of [the Supreme Court] and

nevertheless arrives at a result different from [Supreme Court] precedent.”

Williams v. Taylor, 529 U.S. 362, 406 (2000). A state court unreasonably applies

federal law when it correctly identifies the governing rule but is “objectively


                                           2
unreasonable” in its application of federal law to the facts of the prisoner’s case.

Id. at 407-10.

      The district court correctly denied Fairchild’s petition for a writ of habeas

corpus. First, the Idaho courts reasonably applied federal law in determining that

Fairchild was not entitled to disclosure of the identities of the confidential

informants for purposes of preparing for trial or for the suppression hearing. The

identities of the confidential informants were not relevant to Fairchild’s trial

defense against the possession offenses, because the informants’ statements were

used only to support the probable cause determination for the underlying search

warrant. See Roviaro v. United States, 353 U.S. 53, 59–61 (1957). Nor was

Fairchild entitled to disclosure of the confidential informants’ identities at the

suppression hearing, because probable cause did not rely on their identities,

McCray v. Illinois, 386 U.S. 300, 312 (1967), and Fairchild did not make a

sufficient preliminary showing that disclosure would tend to prove that the

underlying affidavit was intentionally or recklessly false in stating that a

“controlled buy” had occurred, Franks v. Delaware, 438 U.S. 154, 171-72 (1978).

      Second, the Idaho Court of Appeals reasonably applied federal law in

determining that the identities of the unnamed police officers, the disclosure of

which would reveal the identity of at least one confidential informant, were also


                                            3
protected by the confidential informant’s privilege. United States v. Napier, 436

F.3d 1133, 1136 (9th Cir. 2006).

      Finally, we affirm the district court’s finding that the state court’s denial of

petitioner’s motion to continue the suppression hearing did not deprive petitioner

of due process, because petitioner filed multiple motions, each of which the court

ruled on, and because petitioner’s lawyer was dilatory in filing a request to

examine the evidence. See Ungar v. Sarafite, 376 U.S. 575, 589 (1964). We also

reject petitioner’s probable cause claim because he had a full and fair opportunity

to litigate the claim in state court. See Stone v. Powell, 428 U.S. 465, 481-82

(1976).

      AFFIRMED.




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