AMENDED SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

New York State prisoner David Newkirk, currently serving a twenty-one year sentence for three counts of first-degree sexual abuse and three counts of first-degree attempted rape, appeals from the denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court granted Newkirk a certificate of appealability on the issue of whether the state court unreasonably applied federal law in ruling that he was not deprived of a fair trial by the failure to declare a mistrial based on "prior crimes" testimony by the victim, Newkirk's stepdaughter "SL," in violation of a pre-trial evidentiary ruling.1 We assume the parties' familiarity with the facts and procedural history.

Newkirk argues that he was deprived of a fair trial based on SL's testimony that she did not scream or tell her mother after the three charged incidents of sexual abuse because "it was something that always happened" and had "been going on." J.A. 485. That testimony, as the prosecution acknowledged, violated the trial court's pre-trial evidentiary ruling that the state could not present evidence of Newkirk's past sexual abuse of SL. The New York State Appellate Division held that SL's improper testimony "was not so egregious as to deny [Newkirk] a fair trial," in light of the trial court's striking of the testimony, its offer of a curative instruction, and the "overwhelming evidence of [Newkirk's] guilt." People v. Newkirk, 75 A.D.3d 853, 856-57 (N.Y. App. Div. 3d Dep't, 2010).

A federal court may grant habeas relief under § 2254 only if the state court's rejection of the petitioner's claim (1) "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or (2) "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1)-(2). We cannot disturb the state court's decision unless it is "so lacking in justification that there was an error... beyond any possibility for fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011).

Newkirk cannot meet that exacting standard. The Supreme Court has declined to "express [an] opinion on whether a state law would violate the Due Process Clause if it permitted the use of `prior crimes' evidence to show propensity to commit a charged crime." Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991). The state court's ruling that SL's "prior crimes" testimony did not violate Newkirk's right to a fair trial is therefore not contrary to clearly established federal law as determined by the Supreme Court.2 Moreover, the state court's ruling was entirely reasonable. SL's brief impermissible testimony did not allege conduct worse than that charged, and did little to bolster her credibility. Her testimony regarding the charged conduct was also corroborated by DNA evidence, further supporting the state court's conclusion that the impermissible testimony did not contribute to the verdict.3

Accordingly, we AFFIRM the judgment of the district court.