James Earl Smith, Petitioner-appellant, v. B.j. Bunnell, Warden; Attorney General of California,respondents-appellees, 952 F.2d 407 (9th Cir. 1992)

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US Court of Appeals for the Ninth Circuit - 952 F.2d 407 (9th Cir. 1992) Submitted Dec. 2, 1991. *Decided Jan. 6, 1992

Before SCHROEDER and KOZINSKI, Circuit Judges, and HOGAN,**  District Judge.


Federal courts do not sit in review of questions of state evidence law. Jammal v. Van de Kamp, 926 F2d 918, 919 (9th Cir 1991). We may consider only whether the admission of the prior offense violated the federal constitution; petitioner is not entitled to habeas relief unless admission of the evidence violated his right to a fair trial under the due process clause. Estelle v. McGuire, 60 USLW 4015, 4017-18 (Dec 4, 1991). There was no such violation in this case. Cf. Gordon v. Duran, 895 F2d 610, 613 (9th Cir 1990).

Nor were petitioner's sixth amendment rights violated. Although he had a right to counsel in the investigation of the prior robbery, that right was neither implicated nor infringed by questioning, following petitioner's waiver of his Miranda rights, regarding the later offense. See United States v. Nocella, 849 F2d 33, 38-39 (1st Cir 1988).

The district court's denial of the writ of habeas corpus is accordingly.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


The Honorable Michael R. Hogan, United States District Judge for the District of Oregon, sitting by designation


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