Porter v. McGrath

268 F. App'x 676

Opinion

MEMORANDUM

**

California state prisoner James E. Porter appeals pro se from the denial of his 28 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. § 2258, 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 un-certified 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).

AFFIRMED.

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.