Martinez

MEMORANDUM **

1. Darrick Martinez (“Martinez”) failed to establish that the state appellate court’s decision to permit amendment of the indictment was contrary to or an unreasonable application of clearly established United States Supreme Court precedent. See Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003). Martinez’s reliance on Apprendi v. New Jersey, 530 U.S. 466 , 120 S.Ct. 2348 , 147 L.Ed.2d 435 (2000), and Jones v. Smith, 231 F.3d 1227 (9th Cir.2000), is misplaced. Apprendi did not directly address the issue of notice to the defendant of the criminal charges and is therefore not controlling. See Clark, 331 F.3d at 1069 . The dicta in Jones is similarly of no assistance to Martinez, since clearly established law for purposes of habeas review is that propounded by the United States Supreme Court. See id.

2. The denial of Martinez’s motion for a mistrial based on a witness’s emotional outburst was not constitutional error. A jury’s exposure to facts not in evidence is subject to Brecht harmless error analysis. Lawson v. Borg, 60 F.3d 608, 612 (9th Cir.1995). Since several witnesses identified Martinez as the assailant, Martinez failed to demonstrate that the witness’s…