United States Court of Appeals, Ninth CircuitMar 3, 2010
369 Fed. Appx. 784 (9th Cir. 2010)

No. 07-36047.

Submitted February 16, 2010.

The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).

Filed March 3, 2010.

Bruce Eric Smith, Walla Walla, WA, pro se.

Alex A. Kostin, Esq., Office of the Washington Attorney General Criminal Justice Division, Olympia, WA, for Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington, Robert J. Bryan, District Judge, Presiding. D.C. No. CV-06-05678-RJB.

Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.


This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

Washington state prisoner Bruce Eric Smith appeals from the district court's dismissal of his 28 U.S.C. § 2254 habeas petition challenging his jury conviction for first degree rape, first degree murder, and first degree burglary. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Smith contends that his due process rights were violated when the trial court permitted the arresting officers to testify about their observations regarding Smith's post-arrest physical condition. Specifically, Smith contends that the officers impermissibly testified about his unresponsiveness, in violation of Wainwright v. Greenfield, 474 U.S. 284, 106 S.Ct. 634, 88 L.Ed.2d 623 (1986). The record reflects that any alleged error is harmless because it did not have a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotations omitted).