Griggs v. Hubbard , 73 F. App'x 309 ( 2003 )

MEMORANDUM ^**

Kenneth Griggs, a California state prisoner, appeals the denial of his 28 U.S.C. § 2254 petition challenging his conviction for rape, unlawful penetration with a foreign object, and false imprisonment. On appeal, Griggs argues that the district court erred in concluding that he could not raise the issue whether the trial court abused its discretion by admitting evidence of his prior sexual assault because he did not exhaust that issue in his direct appeal. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

The district court granted the certificate of appealability on the issue whether “California Evidence Code § 1108 is facially unconstitutional in that it denies a defendant due process and equal protection.” We reject Griggs’s argument that the issue whether the trial court abused its discretion in conducting its California Evidence Code § 352 analysis of the prior sexual assault evidence is implicit in his argument that § 1108 is unconstitutional on its face. Because the issue whether the trial court abused its discretion is not within the scope of the certificate of appealability, we decline to address it. See 28 U.S.C. § 2253(c); see also Hiivala v. Wood, 195 F.3d 1098, 1102-03 (9th Cir.1999) (per curiam).

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.