Sounthone Viet Katekeo v. T. FELKER, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SOUNTHONE VIET KATEKEO,
Petitioner - Appellant,
v.
T. FELKER, Warden,
Respondent - Appellee.
No. 09-16642
D.C. No. 2:08-cv-02776-JAM
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted October 19, 2010**
Before: O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
California state prisoner Sounthone Viet Katekeo appeals pro se from the
district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
Katekeo contends that the trial court improperly denied his motion to
FILED
OCT 27 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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substitute counsel, made pursuant to People v. Marsden, 465 P.2d 44 (1970). The
state court decision affirming the trial court’s denial of Katekeo’s Marsden motion
was not contrary to, and did not involve an unreasonable application of clearly
established federal law. See 28 U.S.C. § 2254(d)(1); Schell v. Wittek, 218 F.3d
1017, 1026-28 (9th Cir. 2000) (en banc).
Katekeo also contends that the trial court violated his right to due process by
denying his motion for a continuance. The record reflects that the trial court’s
denial of the continuance was not “so arbitrary as to violate due process.” See
Ungar v. Sarafite, 376 U.S. 575, 589 (1964).
Finally, Katekeo contends that the trial court’s erroneous admission of
evidence of his gang affiliation violated his right to due process. The state court’s
determination that the error was harmless was not contrary to, and did not involve
an unreasonable application of, clearly established federal law, as determined by
the Supreme Court of the United States. See Brecht v. Abrahamson, 507 U.S. 619,
636-638 (1993) (on collateral review, the question is whether the error had a
“substantial and injurious effect or influence in determining the jury’s verdict”),
see also Fry v. Pliler, 551 U.S. 112, 121-22 (2007) (in § 2254 proceedings, the
prejudicial impact of constitutional error in a state-court trial must be assessed
under the Brecht standard).

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We construe Katekeo’s additional arguments as a motion to expand the
certificate of appealability. So construed, the motion is denied. See 9th Cir. R.
22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per
curiam).
AFFIRMED.

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