Darn

MEMORANDUM **

Floyd Dam appeals the district court’s denial of his habeas corpus petition, alleging that the admission of prior sexual assault evidence under California Evidence Code section 1108 and its related jury instruction, CALJIC 2.50.01, violated his federal constitutional right to due process because they impermissibly lower the prosecution’s burden of proof.

At trial, Darn’s sole objections to the introduction of the prior assault evidence were that the prior alleged assault did not fall within the scope of section 1108 as a same or similar offense and that the evidence was highly prejudicial. Darn did not raise a constitutional argument until his state appeal. Moreover, Darn did not object to CALJIC 2.50.01 at trial, and he made no independent argument as to the constitutionality of that instruction to the California Court of Appeal. Consequently, the California Court of Appeal held that the arguments were procedurally waived under California law, relying on the state’s contemporaneous objection rule, People v. McPeters, 2 Cal.4th 1148, 1188 , 9 Cal.Rptr.2d 834 , 832 P.2d 146 (1992), and California Evidence Code § 353. Thus, his claims are procedurally barred in…