Unpublished Disposition, 877 F.2d 64 (9th Cir. 1987)

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U.S. Court of Appeals for the Ninth Circuit - 877 F.2d 64 (9th Cir. 1987)

Gary Scott CARMACK, Petitioner-Appellant,v.George SUMNER, the Attorney General of the State of Nevada,Respondents-Appellees.

No. 88-1534.

United States Court of Appeals, Ninth Circuit.

Submitted May 25, 1989* .Decided June 14, 1989.

Before SNEED, FLETCHER and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM*

Gary Scott Carmack, a Nevada state prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. We affirm.

On September 18, 1983, a "Video Tyme" video rental store was robbed by a man carrying a gun. An employee of Video Tyme, Cynthia Evans, identified Carmack as the man who committed the robbery. In March 1984, a jury convicted Carmack of burglary and robbery with the use of a deadly weapon. On May 7, 1987, Gary Carmack filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254, seeking relief from his convictions on the grounds that the state court (1) allowed evidence of another crime to establish Carmack's identity; (2) allowed the prosecutor to introduce evidence of another crime as rebuttal evidence; and (3) violated his due process rights by refusing to allow him to approach the jury to show them the color of his eyes.

On December 10, 1987, the district court denied Carmack's petition on the ground that the record reveals no violations of state evidentiary rules and no constitutional violations. We review de novo a district court's denial of a habeas corpus petition. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir. 1986).

A state prisoner can obtain relief under 28 U.S.C. § 2254 only if he is held "in custody in violation of the Constitution or laws or treaties of the United States." Thus, the petitioner must allege a deprivation of federal rights to obtain habeas relief. Kealohapauole v. Shimoda, 800 F.2d 1463, 1465 (9th Cir. 1986), cert. denied, 479 U.S. 1068 (1987) (citing Engle v. Issac, 456 U.S. 107, 119 (1982)). State court evidentiary rulings, even if erroneous, furnish no basis for federal habeas relief, unless they rendered the trial so unfair as to violate due process. Butcher v. Marquez, 758 F.2d 373, 378 (9th Cir. 1985).

In his petition, Carmack sought relief on the ground that the trial judge allowed Kathy Frazier's testimony regarding a second robbery Carmack committed in Frazier's place of employment approximately a month after the September 18 Video Tyme robbery. Under Nev.Rev.Stat. Sec. 48.045(2) (1987), evidence of other crimes may be admitted to prove identity.1  Frazier first testified that she recognized Carmack as an individual she saw outside the Regency Plaza Cleaners on September 18. The cleaners is located 300 yards from Video Tyme. To further bolster her identification of Carmack, Frazier testified that she saw Carmack again approximately a month later, when he robbed the Regency Plaza Cleaners. The trial judge ruled that this testimony was admissible because the issue of identity was raised by Carmack's alibi defense and the witness should be allowed to explain all of the reasons she believed Carmack was the person she saw outside the cleaners on September 18. We see no basis for holding that this ruling rendered the trial so unfair as to violate due process.

Carmack's petition also requested relief on the ground that the trial court admitted evidence of a past crime for rebuttal purposes. Under Nevada law the prosecution may introduce evidence of prior criminal conduct in order to impeach the defendant's testimony. Allen v. State, 94 Nev. 285, 286-87 (1978). Carmack testified that he had "never robbed anybody." By making this statement, Carmack opened the door to rebuttal testimony by someone whom he had robbed. The trial court then allowed Eva Savage's testimony that Carmack had robbed Video Tyme a second time while she was working there on September 27, 1983. See Allen, 94 Nev. at 286. Carmack does not indicate nor does the record reflect any way in which this testimony rendered his trial so unfair as to violate due process.

Carmack contends that the trial judge violated his due process rights by denying his request to approach the jury to show them the color of his eyes. Under Nev.Rev.Stat. Sec. 48.035(2), the trial judge may exclude relevant evidence, the probative value of which is outweighed by considerations of undue delay, waste of time or needless presentation of cumulative evidence. The two witnesses who identified Carmack as the person responsible for the crime testified that the perpetrator had bluish eyes.2  The defense then presented several witnesses who testified that Carmack had brown eyes. Carmack also took the stand and testified that he had brown eyes. In light of this testimony, the trial judge reasonably could have concluded that allowing the jury to look at Carmack's eyes would have constituted the presentation of cumulative evidence. Thus, we hold that the decision to deny Carmack's request to approach the jury to show them his eye color did not render Carmack's trial so unfair as to violate due process.

Because the record does not show that the trial judge's evidentiary rulings rendered Carmack's trial unfair, we hold that the district court properly denied Carmack's Section 2254 petition. See Butcher, 758 F.2d at 378. We affirm the decision of the district court in all respects.

 *

The panel finds this case appropriate for submission without oral argument pursuant to Fed. R. App. P. 34(a); Circuit Rule 34-4

 **

This disposition is not appropriate for publication and may not be cited to or by the Courts of this Circuit except as provided by Circuit Rule 36-3

 1

Nev.Rev.Stat. Sec. 48.045(2) states:

Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

 2

Cynthia Evans, who was working at Video Tyme when it was robbed on September 18, identified Carmack as the perpetrator and testified that the person who robbed the Regency Plaza Cleaners a month later was Carmack, and that the perpetrator of that robbery had bluish-gray eyes