Appeal from the United States District Court for the District of Arizona. D.C. No. CV-91-1394-PHX-RCB. Robert C. Broomfield, District Judge, Presiding
Before: Schroeder, D. W. Nelson, and Thompson, Circuit Judges.
David Michael Soule, an Arizona state prisoner, appeals pro se the denial of his habeas corpus petition challenging his conviction for three counts of sale of narcotics. Soule contends that the trial court violated his right to due process by (1) requiring him to admit all of the elements of the offense before it would instruct the jury on the defense of entrapment and (2) refusing to grant a mistrial after the introduction of a police officer's hearsay testimony. We have jurisdiction under 28 U.S.C. § 2253. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir. 1989), and affirm.
First, Soule contends that he was denied a fair trial because the state trial court required him to admit all of the elements of the offense. This contention is precluded by our recent decision in Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993) (per curiam) (Constitution does not preclude Arizona from requiring admission of all elements of offense as prerequisite to entrapment instruction) (citing Mathews v. United States, 485 U.S. 58, 62, 99 L. Ed. 2d 54, 108 S. Ct. 883 (1988)).
Second, Soule contends that he was denied a fair trial because Detective Thomas Kulesa testified that (1) he had been told that Soule was selling heroin and (2) Soule had offered to sell him two revolvers. This contention lacks merit.
"A state court's evidentiary ruling is ground for federal habeas corpus relief only if it renders the state proceeding so fundamentally unfair as to violate due process." Bueno, 988 F.2d at 87 (citing Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991)); see Brecht v. Abrahamson, 123 L. Ed. 2d 353, 113 S. Ct. 1710, 1722 (1993) ("trial type" constitutional error not harmless if it had substantial and injurious effect or influence on verdict).
Here, the trial court made an in limine ruling that Kulesa's testimony regarding Soule's heroin selling was inadmissible. That testimony and the testimony about the revolvers nonetheless was introduced. Immediately afterwards, the trial court sustained defense objections to the testimony and instructed the jury to disregard it. Before deliberations, the trial court again instructed the jury to disregard stricken testimony.
Soule argues that Kulesa's portrayal of him as an "armed heroin dealer" severely prejudiced his entrapment defense. The state argues that Soule's acquittal of the first of four methadone sales shows that the jury instruction cured any prejudicial effect of Kulesa's testimony regarding the heroin and the revolvers. The evidence shows that after the first sale, Soule told Kulesa he would have more methadone in a few days. Soule gave Kulesa a deal on the third sale in order to sell a greater quantity. During the fourth sale, Soule asked Kulesa if he knew anyone else who would be interested in buying his methadone. In light of this evidence of preDisposition regarding the second, third, and fourth sales, the district court did not err by finding that Kulesa's stricken testimony did not render the trial fundamentally unfair. See Bueno, 988 F.2d at 87.
Accordingly, we AFFIRM the denial of Soule's habeas petition.