Kenneth W. Foose v. Jacqueline Crawford

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously finds this case 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NOT FOR PUBLICATION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
KENNETH W. FOOSE,
Petitioner - Appellant,
v.
JACQUELINE CRAWFORD, et al.,
Respondents - Appellees.
No. 08-15908
D.C. No. 3:03-CV-00245-LRH-
RAM
MEMORANDUM *
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted November 18, 2009**
Before: HUG, SKOPIL, and BEEZER, Circuit Judges.
Kenneth W. Foose, a Nevada state prisoner, appeals from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We
affirm.
FILED
DEC 14 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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DISCUSSION
Foose claims his constitutional due process rights were violated when the
state trial court admitted evidence of prior acts of misconduct. Contrary to the
state’s contention, this claim was properly exhausted. See Chambers v.
McDaniel, 549 F.3d 1191, 1195-99 (9th Cir. 2008) (concluding under similar
circumstances that the Nevada Supreme Court’s denial of a petition for
extraordinary writ satisfies the federal exhaustion requirement).
On the merits, Foose’s contention that he is entitled to federal habeas relief
because the state trial court admitted propensity evidence has been rejected by
this court. See Mejia v. Garcia, 534 F.3d 1036, 1046 (9th Cir. 2008), cert.
denied, 129 S. Ct. 941 (2009); Alberni v. McDaniel, 458 F.3d 860, 863-67 (9th
Cir. 2006). We explained in those cases that Estelle v. McGuire, 502 U.S. 62, 75
n.5 (1991), expressly reserved deciding whether admission of propensity
evidence violates due process. Accordingly, a state court’s decision rejecting
such a claim cannot be said to be contrary to, or an unreasonable application of,
“clearly established Federal law, as determined by the Supreme Court of the
United States.” See 28 U.S.C. § 2254(d).

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To the extent Foose seeks to raise additional uncertified issues or expand
the certificate of appealability, we deny the motion. 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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