Unpublished Disposition, 902 F.2d 40 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 40 (9th Cir. 1990)

Glenn Edward SMITH, Petitioner-Appellantv.Robert Glen BORG, Warden, Respondent-Appelle

No. 89-15411.

United States Court of Appeals, Ninth Circuit.

Submitted Jan. 23, 1990.* Decided May 14, 1990.

Before MERRILL, KILKENNY and DAVID R. THOMPSON, Circuit Judges.


MEMORANDUM** 

Glenn Smith appeals pro se from the district court's dismissal of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. Smith alleges that the state trial court's admission of evidence of uncharged crimes and its refusal to sever one of the six crimes for which he was being tried deprived him of due process by denying him a fair trial. We disagree and affirm.

A state trial court's decision to admit evidence of uncharged crimes to show identity will not be disturbed by a federal court on due process grounds absent a showing that the admission was either arbitrary or so prejudicial as to render the trial fundamentally unfair. Colley v. Sumner, 784 F.2d 984, 990 (CA9), cert. denied, 479 U.S. 839 (1986). Cf. Terrovona v. Kincheloe, 852 F.2d 424, 428-29 (CA9 1988) (same with respect to evidence of prior convictions).

Here, ten elements from the uncharged Ford and Caselli offenses were identical to those in four of the six charged crimes. Moreover, nine elements from the Brown offense, and eight from the Renaldi crime, were also identical to those in the Ford and Caselli offenses. Most important was the identity of three critical elements in all eight crimes, both charged and uncharged. Finally, all evidence relevant to the ten elements of the Baker crime would have been admissible upon the separation of that trial from the others. See United States v. Johnson, 820 F.2d 1065, 1070-71 (CA9 1987). On this record it cannot be said that the state trial court's decisions to admit evidence of the uncharged crimes and to deny the appellant's motion to sever were either arbitrary or so prejudicial as to render the trial fundamentally unfair.

Accordingly, the decision of the district court is AFFIRMED.

 *

The panel unanimously agrees that this case is appropriate for submission without oral argument per FRAP 34(a) and CA9 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 CA9 Rule 36-3