Tate

MEMORANDUM **

California state prisoner Derek Tate appeals pro se from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

The admission of prior bad act evidence under California Evidence Code § 1108 was harmless error, as it was also properly admitted under California Evidence Code § 1101(b) to show identity and intent. The state courts’ determination that the § 1108 instruction did not violate due process was not contrary to or an unreasonable application of clearly established Supreme Court precedent. See Alberni v. McDaniel, 458 F.3d 860, 866-67 (9th Cir. 2006).

Tate was afforded a reasonable opportunity to make a timely request to testify, but failed to do so. Accordingly, the state courts’ determination that Tate is not entitled to relief based on the trial court’s denial of his untimely motion to testify was not contrary to or an unreasonable application of clearly established federal law. Cf United States v. Pino-Noriega, 189 F.3d 1089, 1095 (9th Cir.1999).

Tate’s counsel’s failure to challenge the introduction of prior bad acts evidence under § 1108 did not constitute…