NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

 FOR THE NINTH CIRCUIT

LARRY AVERY SCOTT,

 Petitioner - Appellant,

 v.

RALPH M. DIAZ, Warden, SATF

Corcoran, California,

 Respondent - Appellee.

No. 10-55319

D.C. No. 2:06-cv-01995-DDP-SH

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Submitted August 5, 2014** 

Pasadena, California

Before: REINHARDT, WARDLAW, and CALLAHAN, Circuit Judges.

Larry Avery Scott appeals the district court’s denial of his habeas corpus

petition. Scott contends that: (i) the erroneous admission of prior conduct evidence

FILED

AUG 14 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

 * This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

 ** The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

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resulted, independently or cumulatively, in a denial of his due process right to a

fair trial; and (ii) his trial counsel’s failure to object to a witness’s recorded

statement suggesting that Scott or another defendant was “[t]he guy that killed . . .

Gil Bailey” constituted ineffective assistance of counsel. We have jurisdiction

pursuant to 28 U.S.C. § 2253, and we affirm.1

I

Scott contends that admission of witness statements suggesting that he shot

someone and killed someone else resulted, independently or cumulatively, in a

denial of his due process right to a fair trial. A state trial court’s evidentiary

rulings do not provide grounds for federal habeas relief unless “the alleged errors

rise to the level of a due process violation.” Estelle v. McGuire, 502 U.S. 62, 67

(1991).

Shannon Brown’s testimony that Scott had shot her husband was relevant

because it was responsive to defense counsel’s questioning and revealed her bias

against Scott. Will Brown’s recorded statement suggesting that one of the

defendants “killed . . . Gil Bailey” was relevant to Will Brown’s fear of Scott and

his co-defendant, which provided a possible explanation for Will Brown’s failure

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 Because the parties are familiar with the history of the case, we repeat only

those facts necessary to explain our decision.

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to identify Scott or the co-defendant at trial. Because the jury could draw

permissible inferences from the contested evidence, and the court instructed the

jury to consider the evidence only for its legitimate purposes, the state court’s

determination that none of the contested evidence was erroneously admitted was

not contrary to or an unreasonable application of clearly established federal law. 

See Harrington v. Richter, 131 S. Ct. 770, 783-84 (2011) (quoting 28 U.S.C.

§ 2254(d)(1)); Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991).

Moreover, even if any of the evidence was admitted in error, Scott has not

shown that any of these errors had a substantial and injurious effect or influence on

the jury verdict. See Brecht v. Abrahamson, 507 U.S. 619, 623 (1993). The trial

judge admonished the jury multiple times that Shannon Brown’s statements were

admitted for only the limited purpose of assessing her credibility or state of mind. 

The trial judge clarified that there was no evidence, arrest, or prosecution against

Scott for shooting Shannon Brown’s husband. Additionally, Will Brown’s

statement about Gil Bailey’s killer was ambiguous as to whom it referred, part of a

poor-quality recording, and never mentioned again throughout the trial.

Accordingly, any error did not have a substantial and injurious effect or influence

on the jury verdict.

II

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Scott contends that his trial counsel’s failure to object to Will Brown’s

statement regarding “[t]he guy” that killed Gil Bailey violated his rights under the

Sixth Amendment. Under Strickland v. Washington, 466 U.S. 668, 687 (1984),

Scott must demonstrate that: (1) his defense counsel’s performance fell below an

objective standard of reasonableness; and (2) the deficient performance prejudiced

the defense. 

The California Court of Appeal determined that Will Brown’s statement was

properly admitted, meaning that any objection would have been meritless. See

Juan H. v. Allen, 408 F.3d 1262, 1273-74 (9th Cir. 2005) (holding that the state

court was not objectively unreasonable in determining that the performance of

counsel did not fall below an objective standard of reasonableness for failing to

make a meritless objection). Scott also fails to show any prejudice as a result of

the failure to object. As discussed previously, the statement was ambiguous as to

the killer’s identity, was part of a poor-quality recording, and never came up again

throughout the entire trial. These facts do not suggest a reasonable probability that,

but for trial counsel’s failure to object, Scott would have been acquitted. The state

courts’ denial of this claim was not contrary to, or an unreasonable application of

Strickland. See Richter, 131 S. Ct. at 783-84 (quoting 28 U.S.C. § 2254(d)(1)).

AFFIRMED.

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