Amin Aleali, Petitioner-appellant, v. William A. Merkle, Warden, Respondent-appellee, 73 F.3d 368 (9th Cir. 1995)

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US Court of Appeals for the Ninth Circuit - 73 F.3d 368 (9th Cir. 1995)

Argued and Submitted Dec. 5, 1995. Decided Dec. 19, 1995


Before: WALLACE, Chief Judge, THOMPSON, Circuit Judge, and THOMPSON,*  District Judge.

MEMORANDUM

Aleali appeals from the denial of his petition for habeas corpus. The district court had jurisdiction pursuant to 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 2253. We affirm.

The district court properly ruled that the disputed hearsay testimony possessed sufficient indicia of reliability to permit its introduction into evidence without violation of the Sixth Amendment. Idaho v. Wright, 497 U.S. 805, 818 (1989).

The district court also properly ruled on the excluded evidence that Aleali's pursuer carried a gun. That evidence was irrelevant to the issue because there was no showing Aleali was aware of the gun.

Last, the district court properly found that the prosecutor did not violate Aleali's due process. Although the prosecutor should have argued at Aleali's trial that Aleali had not shown he knew he was in imminent peril from the gun, rather than that he was, in fact, in no peril, these two assertions are sufficiently close so that the prosecutor's error was unprejudicial.

AFFIRMED.

Note: This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

 *

Honorable Gordon Thompson, Jr., United States District Judge, Southern District of California, sitting by designation