                                                                                  FILED
                             NOT FOR PUBLICATION                                  MAR 19 2015

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



                             FOR THE NINTH CIRCUIT


JEROME MARKAY,                                     No. 08-16538

               Petitioner - Appellant,             D.C. No. 2:02-cv-00152-GEB-
                                                   GGH
  v.

L. BROWN and ATTORNEY GENERAL                      MEMORANDUM*
FOR THE STATE OF CALIFORNIA,

               Respondents - Appellees.


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

                              Submitted March 9, 2015**
                               San Francisco, California

Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.

       Jerome Markay, appealing from the district court’s denial of his petition for

writ of habeas corpus, argues that his absence at resentencing violated his right to

be present at all critical stages of trial. We affirm the district court’s denial of

        *
             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).
                                                                         Page 2 of 2
Markay’s habeas petition because even if Markay had a constitutional right to be

present at resentencing, and even if he did not waive that right, the California Court

of Appeal did not unreasonably determine that any error in his case was harmless.

See Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005) (en banc); Rice v.

Wood, 77 F.3d 1138, 1144 (9th Cir. 1996) (en banc).

      Nothing in the record suggests that Markay’s absence influenced the

sentencing court’s decision. The court was familiar with Markay’s mental health

history, and Markay was represented by counsel. Markay’s speculation that he

would have received a lighter sentence had he been present is inadequate, at least

on this record, to demonstrate that his absence had a “substantial and injurious

effect” on the outcome. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).

      AFFIRMED.
