Johnson v. Belleque

235 F. App'x 561

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 20, 2007
• Docket: No. 06-35519
• Status: Published

Opinion

MEMORANDUM

**

Oregon state prisoner Kevin Johnson appeals pro se from the district court’s judgment denying his habeas petition under 28 U.S.C. § 2254. Johnson was convicted of two counts each of first-degree burglary and first-degree rape, and was sentenced to 288 months in prison. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo, Turney v. Pugh, 400 F.3d 1197, 1199 (9th Cir.2005), and we affirm.

Johnson contends that admitting the victim’s in-court identification of him as the perpetrator violated his federal due process rights. We agree with the district court that admitting this evidence did not have a substantial and injurious effect on the verdict in light of the other overwhelming evidence against him. See Fry v. Pliler, - U.S. -, 127 S.Ct. 2321, 2326-27, 168 L.Ed.2d 16 (2007); Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

We construe Johnson’s presentation of uncertified issues as a motion to expand the certificate of appealability. See 9th Cir. R. 22-l(e). So construed, we deny the motion. See Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

Because Johnson has not addressed the first claim certified for appeal by the district court, we deem that claim waived. See Wilcox v. Comm’r, 848 F.2d 1007, 1008 n. 2 (9th Cir.1988) (applying to a pro se litigant the rule that arguments not presented in briefs are deemed abandoned).

All pending motions are denied as moot.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.