Lamarque

MEMORANDUM **

James Johnson appeals the denial of his habeas petition challenging his California conviction. We may reverse the district court’s denial of habeas relief only if California’s decision to uphold his conviction was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]” 28 U.S.C. § 2254 (d)(1).

The California court’s finding of no constitutional error in the use of California Jury Instruction 17.41.1 was neither contrary to nor an unreasonable application of clearly established federal law as determined by the Supreme Court. As we explain in Brewer v. Hall, 378 F.3d 952 (9th Cir.2004), filed concurrently with this decision, no Supreme Court case clearly establishes a constitutional problem with that jury instruction.

Nor did the California court act contrary to or unreasonably apply clearly established federal law when it found no constitutional error in the state’s use of Johnson’s pre-arrest silence as evidence. As Johnson acknowledges, no Supreme Court decision has addressed this issue and this court has held that “[t]he use of a defendant’s pre-arrest, pre-Miranda…