                                                                           FILED
                           NOT FOR PUBLICATION                              JAN 28 2013

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




                            FOR THE NINTH CIRCUIT



BRIAN KEATON GEORGE,                             No. 10-16873

              Petitioner - Appellant,            DC No. 4:09-cv 02076 CW

  v.
                                                 MEMORANDUM *
JOHN W. HAVILAND, Warden,

              Respondent - Appellee.



                   Appeal from the United States District Court
                      for the Northern District of California
                  Claudia Wilken, Chief District Judge, Presiding

                      Argued and Submitted January 17, 2013
                            San Francisco, California

Before:       TASHIMA and GRABER, Circuit Judges, and ADELMAN, District
              Judge.**

       Brian George, who was convicted in state court on several charges

associated with two separate shooting incidents, petitions for habeas corpus relief

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Lynn S. Adelman, United States District Judge for the
Eastern District of Wisconsin, sitting by designation.

                                         -1-
under 28 U.S.C. § 2254. His petition – which is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”) – cannot be granted unless the

state’s adjudication was (1) “contrary to, or involved an unreasonable application

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

United States”; or (2) “based on an unreasonable determination of the facts.” 28

U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 405-06 (2000). We affirm

the district court’s denial of the petition.

       1.     George argues that the trial court’s failure to instruct the jury with

CALJIC 2.21.2 violated his right to due process. That instruction allows jurors to

“reject the whole testimony of a witness who willfully has testified falsely as to a

material point.” This instruction was warranted because of the undisputed

inconsistencies in the testimony of a key state witness, Jeremy Phillips. The state

court reasonably concluded, however, that the error was harmless and thus did not

violate due process. The substance of CALJIC 2.21.2 was adequately covered by

other instructions, including CALCRIM 226, which provides, in part: “You may

believe all, part, or none of any witness’s testimony. . . . In evaluating a witness’s

testimony, you may consider anything that reasonably tends to prove or disprove

the truth or accuracy of that testimony.” Moreover, nothing in the instructions

precluded the jury from drawing the common-sense inference described by


                                               -2-
CALJIC 2.21.2. Accordingly, the state court’s ruling was reasonable under the

AEDPA.

         2.   George also contends that his due process rights were violated when

the state court consolidated charges related to two separate shooting incidents. As

an initial matter, this claim fails because, under the AEDPA, it is not “clearly

established” that misjoinder of charges can violate due process. See Collins v.

Runnels, 603 F.3d 1127, 1132 (9th Cir. 2010). Even if there were applicable and

clearly established federal law, the state court reasonably concluded that there was

no due process violation. The two sets of charges were simple and distinct, and

neither was demonstrably stronger than the other. Moreover, the jury failed to

convict on one charge from each shooting incident, which shows its ability to

compartmentalize the two cases. Park v. California, 202 F.3d 1146, 1150 (9th Cir.

2000).

         AFFIRMED.




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