                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                             FILED
                             FOR THE NINTH CIRCUIT
                                                                              FEB 22 2016
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
LARRY BANKS,                                       No. 13-17371

              Petitioner - Appellant,              D.C. No. 1:11-cv-02067-LJO-MJS

 v.
                                                   MEMORANDUM*
CONNIE GIPSON, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                      Argued and Submitted February 10, 2016
                             San Francisco, California

Before: THOMAS, Chief Judge and SCHROEDER and NGUYEN, Circuit Judges.

      Larry Banks appeals the district court’s order denying his habeas petition.

Banks was convicted of the May 10, 1977 first degree murder of Susan Vallin.

Banks contends that the trial court erred in instructing the jury that it could

consider evidence of an uncharged sexual assault to show propensity to commit the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
charged murder. His theory is that murder is not a crime similar to the uncharged

sexual offense.

      The challenged instruction directed the jury to regard the sexual assault

evidence as relevant to the felony murder charge. That charged offense was not

dissimilar to sexual offenses. The state court fully instructed the jury regarding the

elements of the offense and the appropriate burdens of proof. See Mendez v.

Knowles, 556 F.3d 757, 768–70 (9th Cir. 2009). The district court therefore

correctly held that under 28 U.S.C. § 2254(d) there was no unreasonable

application of Supreme Court law when the state court determined that the

propensity instruction did not violate due process or render his trial fundamentally

unfair.

      AFFIRMED.




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