Unpublished Disposition, 874 F.2d 815 (9th Cir. 1989)

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U.S. Court of Appeals for the Ninth Circuit - 874 F.2d 815 (9th Cir. 1989)

Leroy DEDRICK, Petitioner-Appellant,v.J.C. KEENEY, Superintendent, Oregon State Penitentiary,Respondent-Appellee.

No. 87-3577.

United States Court of Appeals, Ninth Circuit.

Submitted*  Jan. 9, 1989.Decided May 2, 1989.

Before SCHROEDER, POOLE and NELSON, Circuit Judges.


MEMORANDUM** 

Leroy Dedrick, an Oregon state prisoner, appeals the district court's judgment denying his 28 U.S.C. § 2254 habeas corpus petition. Dedrick argues that the state trial court denied him due process by ruling to allow admission of his prior convictions and by denying his motion for acquittal.

We asked for supplemental briefing on our jurisdiction, and upon review of that issue we conclude that we have jurisdiction of this appeal. The district court was within its discretion in treating appellant's motion to reconsider as an independent subsequent application for habeas corpus, pursuant to 28 U.S.C. § 2244(b).

Appellant was not denied due process of law when the trial judge reversed an earlier ruling and stated that he would permit Dedrick to be impeached by proof of his prior convictions if he testified. Inadvertent reference to Dedrick's parole officer by a prosecution witness placed the existence of his prior criminal record before the jury. While the episode no doubt surprised the appellant and his counsel, there was no improper conduct involved on the part of the prosecution. We are not able to review the merits of the district court's ruling on the propriety of such impeachment unless the defendant takes the stand to testify. Luce v. United States, 469 U.S. 38 (1964); United States v. Bagley, 837 F.2d 371, 376 (9th Cir. 1988). This defendant did not do so.

The evidence in the case is sufficient. It included the defendant's threat to the victim, his accurate prediction of what later actually occurred, and tentative identification testimony. Under the applicable standard of Jackson v. Virginia, 443 U.S. 307 (1979), the evidence was sufficient.

AFFIRMED.

 *

The panel finds this case appropriate for submission without argument pursuant to 9th Cir.R. 34-4 and Fed. R. App. P. 34(a)

 **

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3

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