Rattelle

MEMORANDUM **

California state prisoner Michael Edward Smith appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his 1991 conviction of first degree murder. Pursuant to the district court’s certificate of appealability (COA) and this court’s expanded COA, Smith raises four contentions. We review de novo the district court’s denial of the petition and affirm.

The reading of the testimony of Keith Lugo, Smith’s co-defendant in an earlier trial, did not violate Smith’s Sixth Amendment rights. Lugo’s conviction was on appeal at the time of Smith’s trial and Lugo retained his Fifth Amendment privilege. See People v. Fonesca, 36 Cal. App.4th 631 , 635-637, 42 Cal.Rptr.2d 525 (1995) . Lugo’s statements were made under oath and Smith had an adequate opportunity to cross-examine Lugo and impeach his credibility during the earlier trial. See Ohio v. Roberts, 448 U.S. 56, 64-66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980); United States v. Koon, 34 F.3d 1416, 1426 (9th Cir.1994), aff'd in part, rev’d in part on other grounds, 518 U.S. 81 , 116 S.Ct. 2035 , 135 L.Ed.2d 392 (1996) .

There is no evidence that the prosecution knowingly presented false…