Loritz

*2 MEMORANDUM **

Richard Loritz, II appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his 1996 California state convictions for attempted murder and related offenses. We have jurisdiction under 28 U.S.C. § 2258 , we review de novo the district court’s denial of a habeas petition, Mendez v. Small, 298 F.3d 1154, 1157-58 (9th Cir.2002), and we affirm.

Loritz contends that the prosecutor breached an express contract by seeking to use his psychological evaluation for cross-examination, and that the trial court erred in ruling that his psychological evaluation could be used to cross-examine Loritz and two expert witnesses. Because neither Loritz nor the expert witnesses testified at trial, he has failed to preserve the issue for appeal. See Luce v. United States, 469 U.S. 38, 43 , 105 S.Ct. 460 , 83 L.Ed.2d 443 (1984) (requiring defendant to testify to preserve claim of improper impeachment with a prior conviction); United States v. Johnson, 903 F.2d 1219, 1222 (9th Cir.1990) (applying Luce and holding defendant must testify to preserve constitutional error).

Loritz next contends that his constitutional rights to counsel, to be present, and to…