John Phet v. Eldon Vail

MEMORANDUM

John Phet appeals the district court’s denial of his petition for habeas corpus relief. See 28 U.S.C. § 2254 . We affirm.

Phet asserts that the state trial court’s admission of expert testimony on gangs and Phet’s gang affiliation violated his constitutional rights as a matter of “clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1); see also Richter v. Hickman, 578 F.3d 944, 950-51 (9th Cir.2009) (en banc). We disagree.

Initially, we were inclined to hold, as did the district court, that Phet failed to exhaust his state remedies regarding that claim. Although he did most likely present the First Amendment portion of his claim to the Washington Court of Appeals, which, in any event, decided the issue, it is at least questionable whether he presented that claim to the Washington Supreme Court, as he was required to, and even less likely that he presented his due process claim to either court. Nevertheless, we need not decide that issue because, in any event, we can deny the petition on the merits. We will do so. Simply put, we do not sit to parse state evidentiary rulings, except for the limited purpose of…