Henry v. Mendoza-Powers , 367 F. App'x 741 ( 2010 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 27 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DALRICK AION HENRY, No. 08-55189
Petitioner - Appellant, D.C. No. CV-05-06964-PSG
v.
MEMORANDUM *
KATHY MENDOZA-POWERS,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted January 15, 2010
Pasadena, California
Before: GOODWIN, SCHROEDER and FISHER, Circuit Judges.
Dalrick Aion Henry appeals the denial of his petition for a writ of habeas
corpus. We review the district court’s decision de novo. Burnett v. Lampert, 432
F.3d 996, 997 (9th Cir. 2005). Because Henry’s petition was filed after the Anti-
Terrorism and Effective Death Penalty Act (“AEDPA”) became effective we apply
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
the deference AEDPA demands when a state court has previously resolved a claim
on the merits. See 28 U.S.C. § 2254.
First, Henry alleges that his conviction violated the Constitution because his
counsel failed to request and the trial court failed to give an accomplice testimony
instruction pursuant to California Penal Code section 1111. Even if there were
clearly established federal law, as determined by the Supreme Court of the United
States, making a conviction based on uncorroborated accomplice testimony
unlawful, see 28 U.S.C. § 2254(d)(1), none of Henry’s several challenges to this
alleged error warrant habeas relief because any error arising from the absence of
the instruction was harmless. See Brecht v. Abrahamson, 507 U.S. 619, 637-38
(1993); Henderson v. Kibbe, 431 U.S. 145, 154-55 (1977); Laboa v. Calderon, 224
F.3d 972, 979-80 (9th Cir. 2000).
Second, Henry alleges that his trial counsel provided ineffective assistance
by failing to object when the prosecutor questioned Henry about the veracity of
other witnesses. The California Court of Appeal denied this claim on the merits,
holding that Henry had failed to demonstrate that his trial counsel’s performance
fell “below an objective standard of reasonableness” in light of “prevailing
professional norms.” See Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
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The state court identified the correct legal standard and did not apply it in an
objectively unreasonable way. See Lockyer v. Andrade, 538 U.S. 63, 73-75 (2003).
Third, Henry seeks an expanded certificate of appealability to challenge the
trial court’s decision to require additional foundation before certain evidence could
be admitted. The district court rejected this claim, and we deny Henry’s request
because he has failed to establish that “‘reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.’” Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)).
AFFIRMED.
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