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rejecting equal protection challenge to analogous California statutory code permitting admission of defendant's prior acts of sexual abuse where defendant is charged with current act of sexual abuse, citing LeMay
Summary of this case from Jensen v. HernandezOpinion
No. 06-16124.
The panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 7, 2008.
James E. Porter, Corcoran, CA, pro se.
Patrick J. Whalen, Esq., Mary J. Graves, AGCA — Office of the California Attorney General, Sacramento, CA, for Respondents-Appellees.
Appeal from the United States District Court for the Eastern District of California, Theresa A. Goldner, Magistrate Judge, Presiding. D.C. No. CV-03-05339-TAG.
Before: BEEZER, FERNANDEZ and McKEOWN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Petitioner's request for publication is denied.
California state prisoner James E. Porter appeals pro se from the denial of his 28 U.S.C. § 2254 petition, challenging his jury-trial conviction for forcible rape, unlawful penetration by a foreign object, and unlawful oral copulation. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Porter contends that the admission of evidence that he committed a prior sexual offense violated his rights to due process because it undermined the fairness of his trial. Porter also contends that California Evidence Code § 1108 violates his right to equal protection because it discriminates against defendants charged with sexual offenses. There is no clearly established Supreme Court precedent that prohibits the admission of propensity evidence in a state proceeding. See Estelle v. McGuire, 502 U.S. 62, 75 n. 5, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Furthermore, Porter's equal protection challenge is without merit because he has not shown that he is a member of a suspect class or that the challenged provision burdens a fundamental right. See United States v. LeMay, 260 F.3d 1018, 1030-31 (9th Cir. 2001). Accordingly, we conclude that the state court's decision on this issue was not contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d)(1).
We construe Porter's presentation of uncertified issues as a motion to expand the certificate of appealability. See 9th Cir. R. 22-1(e). So construed, we deny the motion. See Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).