Lewis

MEMORANDUM *

Petitioner Arthur Taylor Lee appeals the district court’s denial of his petition for habeas corpus under 28 U.S.C. § 2254 . We have jurisdiction under 28 U.S.C. § 2253 . We affirm in part and reverse in part.

In 1996, Lee was convicted in California of 1) discharge of a firearm with gross negligence (the “shooting charge”) and 2) possession of a firearm by a felon (the “possession charge”). Lee claims he was deprived of his due process right to a fair trial by prosecutorial misconduct. He further claims that his trial counsel was ineffective for failing to object to that misconduct.

*775 Because Lee planned to testify at trial, the parties agreed to inform the jury that Lee had a prior felony conviction for maliciously setting a fire. In a sidebar, the prosecutor indicated she wanted the option of cross-examining Lee about the “nature” of his prior conviction. Defense counsel objected. The trial court decided to read only the name of the offense, and directed the prosecutor to request a bench conference before bringing up the nature or circumstances of the prior conviction. Nevertheless, during Lee’s cross-examination, the prosecutor initiated the following…

Dissenting.

I agree that the prosecutor did commit misconduct when she explored the details of Lee’s prior arson conviction, even though some of that exploration was induced by his attempt to minimize the conviction. However, as I see it three pages of testimony in the midst of a lengthy (8 day) and acrimonious trial did not amount to error of such magnitude as to warrant a grant of the writ of habeas corpus. Even had the error not been forfeited at the state level, it would not suffice. See Brecht v. Abrahamson, 507 U.S. 619, 638 , 113 S.Ct. 1710, 1722 , 123 L.Ed.2d 353 (1993); Laboa v. Calderon, 224 F.3d 972, 977 (9th Cir.2000); Thompson v. Borg, 74 F.3d 1571, 1577 (9th Cir.1996). Certainly, it cannot be said that defense counsel, who was a leal advocate in this trial, erred so egregiously when he did not object that we can dub him constitutionally ineffective. See Strickland v. Washington, 466 U.S. 668, 687 , 104 S.Ct. 2052, 2064 , 80 L.Ed.2d 674 (1984); Wildman v. Johnson, 261 F.3d 832, 838 (9th Cir.2001); Anderson v. Calderon, 232 F.3d 1053, 1084 (9th Cir.2000), petition for cert. filed (Aug. 29, 2001) (No. 01-6576).

Neither a tendentious desire to change prosecutorial…