McGann

MEMORANDUM **

Francisco McGann appeals the district court’s denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254 . We have jurisdiction over this appeal and we affirm.

The exclusion of Leonor McGann’s testimony that McGann’s cousin told her he was wearing the blood-spattered shirt did not violate McGann’s due process right to present a defense. See Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir.1990) (setting forth five factor balancing test). McGann admitted pulling out a knife and stabbing Salvador Rodriquez in the shoulder. The evidence was uncontradicted that Rodriquez was stabbed nine times, two times in the stomach, two times in the wrist, and five times in the back. This evidence is sufficient to allow a jury to find premeditation and deliberation.

For the same reason that the exclusion of Leonor McGann’s testimony did not violate due process, the failure of McGann’s trial counsel to present other evidence that McGann’s cousin was wearing the blood-spattered shirt did not prejudice McGann. Strickland v. Washington, 466 U.S. 668, 694 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984).

The trial court’s erroneous admission of gang evidence was not an error that “had…