Larry Joseph THOMAS, Petitioner-Appellant, v. A.K. SCRIBNER; Jo Graves; V. Yamamoto; Arnold Schwarzenegger, Respondents-Appellees, 389 F. App'x 726

MEMORANDUM Larry Joseph Thomas, a California state prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction of battery on a non-prisoner by a prison inmate and aggravated assault by a non-life prisoner. We affirm. The prosecutor did not commit misconduct by failing to inform the trial court that Thomas’s prior conviction for second degree burglary was not a crime that could be counted as a strike because it had been allegedly reduced to a lesser offense.

Prosecutorial misconduct rises to the level of a constitutional violation only where it “ ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” Darden v. Wainuright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)). In the present case, however, there is simply no basis in the record to suggest that the prosecutor misstated the evidence.

Rather, the prosecutor merely argued, consistent with the documentary evidence, that Thomas was convicted in 1983 of a residential burglary in the second degree, which is a “serious felony.” See CalPenal Code § 1192.7(c)(18) (1997). Moreover, Thomas cannot demonstrate any “actual prejudice” from the prosecutor’s failure to bring this issue to the court’s attention. See Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

Neither was Thomas entitled to an evi-dentiary hearing regarding the nature of his prior conviction because he “failed to develop the factual basis of [his] claim in State court proceedings,” see 28 U.S.C. § 2254(e)(2), and because he cannot otherwise meet AEDPA’s other “stringent requirements.” See Williams v. Taylor; 529 U.S. 420, 437, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000). Finally, by omitting from his amended petition the claim that the state court’s failure to conduct a competency hearing during the trial rendered his trial fundamentally unfair, Thomas waived that claim. See King v.

Atiyeh, 814 F.2d 565, 567 (9th Cir.1987). To the extent Thomas’s competency hearing claim was not waived, any remand would be futile. The California Court of Appeal for the Third Appellate District dealt extensively with this issue when it found that the trial court did not abuse its discretion in concluding that insufficient evidence had been presented to trigger a competency hearing, and that determination was neither “contrary to, [n]or involved an unreasonable application of, clearly established Federal law.” 28 U.S.C. § 2254(d)(1). AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. . Because the parties are familiar with the facts and procedural history, we do not restate them here except as necessary to explain our disposition. . Although this claim is unexhausted, we deny it on the merits pursuant to 28 U.S.C. § 2254(b)(2) because it does not raise "even a colorable federal claim.” Cassett v. Stewart, 406 F.3d 614, 623-24 (9th Cir.2005).