FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

VICTORINO LEMOS MEJIA,                
              Petitioner-Appellant,         No. 06-16460
                v.
                                             D.C. No.
                                          CV-03-05489-OWW
SILVIA GARCIA; DARREL G. ADAMS;
JEANNE S. WOODFORD,                           OPINION
           Respondents-Appellees.
                                      
       Appeal from the United States District Court
           for the Eastern District of California
       Oliver W. Wanger, District Judge, Presiding

                   Argued and Submitted
         April 14, 2008—San Francisco, California

                    Filed July 25, 2008

     Before: Ronald M. Gould, Richard R. Clifton, and
             N. Randy Smith, Circuit Judges.

                 Opinion by Judge Gould




                           9313
                     MEJIA v. GARCIA                 9315


                       COUNSEL

Suzanne A. Luban, Oakland, California, for the petitioner-
appellant.
9316                       MEJIA v. GARCIA
Edmund G. Brown Jr., Attorney General of the State of Cali-
fornia, Dane R. Gillette, Chief Assistant Attorney General,
Michael P. Farrell, Senior Assistant Attorney General, Brian
G. Smiley, Supervising Deputy Attorney General, and Justain
P. Riley, Deputy Attorney General, Sacramento, California,
for the respondents-appellees.


                             OPINION

GOULD, Circuit Judge:

   Victorino Lemos Mejia (“Mejia”) appeals the district
court’s denial of his petition for a writ of habeas corpus with
respect to California state convictions for two counts of kid-
napping, two counts of assault with a firearm, and one count
of assault with a deadly weapon. We address: 1) whether the
jury instructions read at Mejia’s trial violated Mejia’s due
process rights under In re Winship, 

(1970), with
respect to the kidnapping and assault convictions; and 2)
whether the admission of evidence of prior uncharged sexual
offenses against Mejia’s daughter violated clearly established
United States Supreme Court precedent. We have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm. We
conclude that the jury instructions did not violate Mejia’s
rights under Winship with respect to the kidnapping and
assault convictions and that admission of the uncharged sex-
ual offenses did not violate clearly established Supreme Court
precedent.

                                   I

   The facts concerning the horrific conduct for which Mejia
was convicted are not difficult to grasp. In June of 1999, a
California jury convicted Mejia of five counts of rape by force
of fear, two counts of kidnapping, two counts of assault with
a firearm, and one count of assault with a deadly weapon.1
  1
   This summary of facts comes largely from the magistrate judge’s find-
ings and recommendations, which, in turn, were taken from the California
                            MEJIA v. GARCIA                          9317
The allegations that underpin these convictions are more than
unpleasant: In the summer of 1989, at the age of 18, the sister
of Mejia’s wife came to the United States to work as a baby-
sitter for the Mejia family. After Mejia made arrangements to
smuggle the sister, Maria, across the United States border
with Mexico, Mejia and two of his young children met Maria
in Los Angeles. Together, they took a bus to the county in
which the Mejias lived, where Mejia brought Maria and the
children to a motel.

   From here matters degenerated quickly for Maria. When
the children were asleep, the first alleged sexual assaults took
place: Mejia put a knife to Maria’s neck and told Maria that
he wanted to have sexual intercourse with her. Maria pushed,
kicked and tried to defend herself, telling Mejia that she did
not want to have intercourse. While still holding the knife,
Mejia tore off Maria’s clothing and forced her to have sexual
intercourse with him twice. For the two incidents of inter-
course, Mejia was later charged with counts 1 and 2, each for
forcible rape with an accompanying special allegation that
Mejia used a deadly weapon, namely, a knife, to commit the
offense. For his use of the knife, Mejia was also charged with
count 3, assault with a deadly weapon.

  Mejia told Maria that there was nothing she could do about
being raped because no one would help her. He warned Maria
not to tell her sister and his wife, Soledad, about what had
happened in the motel, and Maria at first obeyed, fearing
Mejia, but eventually told Soledad about the assaults.

   When Mejia discovered this, he forced both women to get
into his truck at gunpoint and drove them to an orange grove.

Court of Appeal opinion. The magistrate judge found the summary to be
a correct and fair summary of the facts. A state court’s factual determina-
tions must be presumed correct, and a reviewing federal court must accept
all factual findings that the state court makes, unless the petitioner can
rebut “the presumption of correctness by clear and convincing evidence.”
28 U.S.C. § 2254(e)(1). The record supports this summary of the facts.
9318                   MEJIA v. GARCIA
He ordered the women out of the truck and told them to walk
to a field at gunpoint, threatening to kill them both. Mejia
twice fired the gun at the women, once off to the side and
once near their feet, and at some point put the gun to Sole-
dad’s head. He ordered Soledad to start walking so that he
could shoot her in the back, and when Soledad complied,
Mejia pointed the gun at Soledad and threatened to shoot her
unless Maria agreed to have sexual intercourse with him.
Maria agreed, afraid that Mejia might kill her sister. Mejia
warned that he would kill Maria if she ever reported him to
anyone. For his use of the firearm at the orange grove, Mejia
was later charged with counts 4 and 5, assault with a firearm
against Maria and Soledad, respectively. For the entire inci-
dent, Mejia was charged with counts 6 and 7, kidnapping
Maria and Soledad, respectively, with a special allegation of
the use of a firearm—a .25 caliber handgun.

   After the three returned home, Mejia got on top of Maria
and grabbed and touched her. Maria tried to push Mejia away,
but she thought he had a gun, and he reminded her of her
promise to have sex with him. Maria replied that she had
made the promise to save Soledad’s life. Mejia then forced
Maria to have sexual intercourse with him, which later consti-
tuted count 8 against Mejia, with a special allegation that he
used the .25 caliber handgun in committing the offense.

   Later in the summer, after Maria unsuccessfully tried to
lock herself in Mejia’s car, Mejia raped her inside the fami-
ly’s empty residence. This would comprise count 11, forcible
rape. Maria testified that over the three months that she lived
at the house, Mejia came into the living room and raped her
roughly twenty to thirty times. On one occasion, Soledad
came into the living room and told Mejia to go back to his
bedroom; this formed the basis for count 12. When Soledad
and Mejia were back in their bedroom, Maria could hear
Mejia beating Soledad.

  Maria eventually escaped the house in October of 1989.
Shortly thereafter, while staying with an acquaintance, Maria
                           MEJIA v. GARCIA                        9319
reported Mejia to the police, who began an investigation. On
January 30, 1990, Mejia was charged in Tulare County Supe-
rior Court with the twelve counts for which he was ultimately
prosecuted, but he was not caught until nearly a decade later.

   While the Mejia family was in Oregon in the early 1990s,
Mejia’s teenaged daughter, Norma, who was aware that the
police were looking for her father, telephoned her former high
school counselor in California and gave the counselor Mejia’s
location in Oregon. The counselor called the police. When
Soledad found out about the call, she told Mejia, who then
moved the family to Mexico. Around this time, Norma told
Soledad that Mejia had been sexually abusing her.

   In February of 1999, law enforcement caught up with Mejia
and brought him back to California. In a police interview,
Soledad, who had denied wrongdoing by Mejia when the
police first investigated in the early 1990s, now said that she
was afraid of Mejia and feared for her family, that she had
lied earlier when she had denied knowledge of wrongdoing,
and that Mejia had abused Maria. When interviewed, Norma
also confirmed that Maria had been abused.2

   At trial Soledad supported Maria’s allegations: Soledad tes-
tified that Maria had told her about two weeks after coming
to live with them that Mejia was abusing her; she confirmed
Maria’s account of the orange grove incident and Mejia’s
threats to kill the two women; she said that she had heard
Mejia in the living room with Maria on occasion and had
heard Maria tell Mejia to get off of her; and she seconded
Maria’s account of running away. Soledad repeated that when
police first came to question her, she had lied, denying that
Mejia had ever raped Maria or assaulted either of them,
although she had given the police officer Mejia’s gun, which
  2
    Norma had already told police of her impression that Mejia had sexu-
ally assaulted Maria in 1990 when the police investigated.
9320                    MEJIA v. GARCIA
she had hidden in her purse, and had told them where Mejia
might be located.

   The trial court admitted evidence of Mejia’s acts of alleged
uncharged sexual misconduct against Norma over defense
objection, pursuant to California Evidence Code §§ 1108 and
352, which allow such evidence to be introduced so long as
its probative value is not substantially outweighed by result-
ing prejudice. The trial court determined that the evidence’s
probative value outweighed its prejudicial effects. Norma then
testified about previous incidents in which she alleged that
Mejia had sexually abused her.

   Norma told the jury that when she was about 15 years old,
an investigator came to the village where her family was stay-
ing in Mexico. Mejia, thinking the investigator was looking
for him, fled with the children to another village and hid in
a hole in the ground. Norma claimed that, while they were
hiding in the hole, Mejia told Norma that she was “going to
lend him [her] private parts,” and began touching her genital
area. Norma stated that when they left the hole and went to
a house for the night, Mejia took out his gun, placed it under
his head and raped her. He later told her that it was her pun-
ishment for having called the police. After that, she testified,
he raped her almost every night and at some point beat her
with ropes.

   Norma said that she eventually told her grandmother about
the assaults, after which Mejia raped Norma again, telling her
that he was raping her because she had told her grandmother
about him. Norma also said that Mejia told her that if she ever
told the police, he would kill her and her mother and throw
their bodies onto the train tracks. Norma stated that Mejia
continued to rape her until she moved out of the house in
1994.

  At his trial, Mejia denied all allegations against him. He
admitted to a relationship with Maria but claimed that it was
                        MEJIA v. GARCIA                     9321
consensual and that he had never owned a handgun. He
denied ever having molested Norma. Two of Mejia’s children
supported his version of events in their testimony.

   The jury convicted Mejia of the five counts of rape by force
of fear, the two counts of kidnapping, the two counts of
assault with a firearm, and one count of assault with a deadly
weapon. The jury acquitted him of count 9, penetration by a
foreign object, and count 10, forcible oral copulation. It also
found “not true” the special allegation that the count 8 forc-
ible rape charge had been committed with a deadly weapon.

   On direct appeal the California Court of Appeal modified
Mejia’s sentence but sustained the convictions. The California
Supreme Court denied Mejia’s petition for review in May of
2002. Mejia filed the present petition for writ of habeas cor-
pus in early 2003. Before the district court issued its ruling,
the government conceded that grant of the writ was appropri-
ate as to the rape convictions under our precedent of Gibson
v. Ortiz, 

(9th Cir. 2004), so only the remaining
convictions were contested.

   The district court adopted the magistrate judge’s recom-
mendation to reject Mejia’s argument that introduction of
Norma’s testimony concerning uncharged sexual offenses
violated his clearly established federal due process rights.
However, the district court declined to adopt the magistrate
judge’s recommendation that Gibson v. Ortiz mandated a
grant of the writ on all counts. Instead, the district court
granted the writ only as to the five rape counts, determining
that the jury instructions did not violate Mejia’s clearly estab-
lished rights as to the remaining counts. Mejia now appeals
the partial denial of his habeas petition.

                               II

  We review de novo a district court’s decision to grant or
deny a petition for habeas corpus under 28 U.S.C. § 2254.
9322                     MEJIA v. GARCIA
Benn v. Lambert, 

, 1051 (9th Cir. 2002). We
review the district court’s findings of fact for clear error. Hen-
dricks v. Calderon, 

, 1036 (9th Cir. 1995), cert.
denied, 

(1996). When reviewing an allegation
that a jury instruction is constitutionally infirm, if the instruc-
tion is ambiguous we must inquire whether there is a reason-
able likelihood that the jury applied the challenged instruction
in a way that violates the Constitution. See Estelle v.
McGuire, 

, 72 (1991). If the error is structural,
however, the error is not subject to harmless error review. See
Sullivan v. Louisiana, 

, 280-82 (1993).

   Because Mejia filed his habeas petition after April 24,
1996, the Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254, governs this court’s
review. Under 28 U.S.C. § 2254(d), we may not grant habeas
relief for a claim adjudicated on the merits in state court
unless the state’s decision is contrary to or an unreasonable
application of clearly established federal law, as determined
by the United States Supreme Court, or is based on an unrea-
sonable determination of the facts in light of the evidence
presented to the state courts. A state court decision is “con-
trary to” clearly established Supreme Court precedent if the
state court “applies a rule that contradicts the governing law
set forth” in Supreme Court decisions or “confronts a set of
facts that are materially indistinguishable from a [Supreme
Court] decision . . . and nevertheless arrives at a result differ-
ent from [Supreme Court] precedent.” Williams v. Taylor, 

, 405-06 (2000). It is an “unreasonable application”
of clearly established Supreme Court precedent if it “correctly
identifies the governing legal rule but applies it [objectively]
unreasonably to the facts” of the case. 

410-11.
We review the last reasoned state court decision to determine
if it violated clearly established Supreme Court law. See Ylst
v. Nunnemaker, 

, 803 (1991). Although section
2254(d) mandates that only Supreme Court precedential hold-
ings clearly establish a right, circuit law may be “persuasive
authority” on the question of whether a state court’s determi-
                          MEJIA v. GARCIA                        9323
nation was an unreasonable application of the Supreme
Court’s precedent. Duhaime v. Ducharme, 

, 600-
01 (9th Cir. 1999); Clark v. Murphy, 

, 1069
(9th Cir. 2003).

                                 III

   [1] In Winship, the United States Supreme Court held that
the Due Process Clause of the Fourteenth Amendment
requires that the prosecution prove beyond a reasonable doubt
every fact necessary to establish each element of the crimes

. A defendant is deprived of due pro-
cess when the jury is not properly instructed that the defen-
dant is presumed innocent until proven guilty beyond a
reasonable doubt. Middleton v. McNeil, 

, 437
(2004). In other words, “the jury verdict required by the Sixth
Amendment is a jury verdict of guilty beyond a reasonable
doubt.” 

. This requirement of proof
of guilt beyond reasonable doubt is one of the foundations of
our system of criminal procedure. The Constitution does not
require the use of any particular words in advising the jury of
the burden of proof as long as “taken as a whole, the instruc-
tions . . . convey the concept of reasonable doubt to the jury.”
Victor v. Nebraska, 

, 5 (1994).

   Mejia argues that the jury instructions given at his trial ren-
dered each of his convictions a violation of the Winship prin-
ciple requiring proof beyond a reasonable doubt. The jury
instructions3 at issue are:

      CALJIC No. 2.50.01, which stated the following—

          Evidence has been introduced for the pur-
          pose of showing that the defendant engaged
  3
   We presume that the jury followed these instructions. See Richardson
v. Marsh, 

, 206 (1987) (noting the “almost invariable
assumption of the law that jurors follow their instructions”).
9324                  MEJIA v. GARCIA
        in a sexual offense on one or more occa-
        sions other than that charged in this case.

        Sexual offense means a crime under the
        laws of the state or of the United States that
        involve any of the following: Any conduct
        made criminal by the Penal Code Section
        288 or 261(a)(2). The elements of these
        crimes are set forth elsewhere in these
        instructions.

        If you find that the defendant committed a
        prior sexual offense, you may but are not
        required to infer that the defendant had a
        disposition to commit the same or similar
        type sexual offenses. If you find that the
        defendant had this disposition, you may but
        are not required to infer that he was likely
        to commit and did commit the crime or
        crimes of which he is accused. You must
        not consider this evidence for any other
        purpose.

    and CALJIC No. 2.50.1, which provided—

        Within the meaning of the preceding sec-
        tion, the prosecution has the burden of
        proving by a preponderance of the evidence
        that a defendant committed a sexual offense
        other than those for which he is on trial.

        You must not consider this evidence for
        any purpose unless you find by a prepon-
        derance of the evidence that a defendant
        committed the other sexual offense[s].

 As indicated above, the government does not contest
Mejia’s argument with respect to the rape convictions; it has
                        MEJIA v. GARCIA                    9325
conceded that Gibson v. Ortiz is materially indistinguishable
and therefore mandates a grant of Mejia’s habeas petition for
the forcible rape charges. However, the parties continue to
dispute, and dispute vigorously, Gibson’s applicability to the
remaining charges.

   In Gibson, the trial judge had allowed evidence of prior
uncharged sexual offenses in the defendant’s trial for the
charged sexual offenses, and had read jury instructions virtu-
ally identical to those given at Mejia’s 

-
18. We affirmed the district court’s grant of the petition for
a writ of habeas corpus in light of the infirm instructions. 

CALJIC 2.50.1, we reasoned, ascribed a lesser burden
of proof, namely, preponderance of the evidence, for previous
sexual offenses. 

We held that CALJIC 2.50.1’s
preponderance of the evidence standard, in conjunction with
CALJIC 2.50.01, which permitted the jury to infer that the
defendant had committed the charged crime if it found “that
the defendant committed a prior sexual offense,” violated the
Winship requirement of proof beyond a reasonable doubt of
every fact necessary to constitute the crime charged. 

concluded that, despite the general “beyond a
reasonable doubt” instruction given elsewhere, the error
resulting from CALJIC 2.50.1 and 2.50.01 was structural
within the meaning of Sullivan: “When a court gives the jury
instructions that allow it to convict a defendant on an imper-
missible legal theory, as well as a theory that meets constitu-
tional requirements, the unconstitutionality of any of the
theories requires that the conviction be set aside.” 

(citation and quotation marks omitted).

   Mejia argues that the structural error at play in Gibson and
in Mejia’s own rape convictions applies equally to Mejia’s
assault and kidnapping convictions. In support, he cites lan-
guage from CALJIC 2.50.01, with emphasis on the italicized
phrase: “If you find that the defendant committed a prior sex-
ual offense, you may but are not required to infer that the
defendant had a disposition to commit the same or similar
9326                    MEJIA v. GARCIA
type sexual offenses. If you find that the defendant had this
disposition, you may but are not required to infer that he was
likely to commit and did commit the crime or crimes of which
he is accused.” CALJIC 2.50.01 (emphasis added). Mejia, in
essence, argues: the italicized phrase does not specify or limit
itself to “the sexual crime or crimes of which he is accused,”
thereby permitting the jury to conclude that it may find Mejia
guilty of all of the charged crimes if it finds (by only a pre-
ponderance of the evidence) that he committed past
uncharged sexual offenses. Mejia contends that this instruc-
tion thereby renders his assault and kidnapping convictions
similarly in violation of Winship and that, under Sullivan, this
error is structural and impervious to harmless error analysis
because the misdescription of the burden of proof vitiates the
jury’s findings. See 

.

   The government counters that this reading of the italicized
phrase is “unreasonable” in the context of the surrounding
text. The government contends that the instruction as a whole
addresses past and current sexual offenses and the permissi-
bility of inferring from past sexual offenses a propensity to
commit sexual offenses; the government argues that the jury
would have read the passage, “the crime or crimes of which
he is accused,” as referring only to sexual crimes, not the sep-
arate crimes of assault and kidnapping. The government urges
application of harmless error analysis, arguing that the jury
instruction is ambiguous and therefore, under Estelle, it vio-
lates due process only if there is a reasonable likelihood that
the jury applied the challenged instruction in an unconstitu-
tional 

.

   [2] We agree with the government’s position that CALJIC
2.50.01 is ambiguous as to what its implications were for the
non-sexual offense charges. Until the phrase in italics above,
CALJIC 2.50.01 explicitly limits itself to inferences permitted
only with respect to sexual crimes. It states: “If you find that
the defendant committed a prior sexual offense, you may but
are not required to infer that the defendant had a disposition
                             MEJIA v. GARCIA                            9327
to commit the same or similar type sexual offenses.” CALJIC
2.50.01 (emphasis added). It is illogical to read the next sen-
tence, then, to suggest that from this disposition to commit the
same or similar type sexual offenses the jury may infer that
the defendant “was likely to commit and did commit” non-
sexual offenses. While Mejia argues that the controversial
passage of CALJIC 2.50.01 could be said, when read literally,
to allow convictions on all counts, not just the sexual
offenses, based only on a preponderance of the evidence, in
our view the more logical and plausible reading of the instruc-
tion is that it allows for convictions only with respect to the
charged sexual offenses. That reasonable minds can differ in
their reading of whether the instruction allows for conviction
on the non-sexual offenses based on a burden of proof other
than beyond a reasonable doubt underscores the instruction’s
ambiguity.4 Our holding in Gibson that the instructional error
there was structural with respect to the sexual offense convic-
tions does not extend to implicate Mejia’s convictions for the
non-sexual offenses.

   [3] In light of our conclusion that the contested jury instruc-
tions are ambiguous as to their implications for Mejia’s non-
sexual offense charges, we are left to determine “whether
there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that violates the Constitution.”
See 

(quotation marks omitted). We
may not judge the instruction in artificial isolation but must
consider it in the context of the instructions and trial record
as a whole. 

mind the Supreme Court’s admoni-
tion that it has “defined the category of infractions that violate
‘fundamental fairness’ very narrowly[,]” 

  4
    Mejia’s emphasis on the relatively interwoven nature of the sexual and
non-sexual offenses in his case does not alter our analysis. The interre-
latedness of the facts of the charged offenses renders it no less illogical to
conclude that the jury was likely to use the belief that Mejia had a disposi-
tion to commit sexual offenses to find him guilty of assault with a deadly
weapon and kidnapping.
9328                    MEJIA v. GARCIA
v. United States, 

, 352 (1990)), we hold that
there is not a reasonable likelihood that the jury applied the
challenged instruction in an unconstitutional way.

   As we have indicated, when read in context, the most likely
interpretation of the infirm jury instructions is that they
allowed the impermissible inference only as to the sexual
offense charges, not the remaining charges. The instructions
provided that if the jury found that Mejia committed a prior
sexual offense, it could infer that he had a disposition to com-
mit the same or similar type sexual offenses. Then, if the jury
found that Mejia had this disposition, it was permitted “to
infer that he was likely to commit and did commit the crime
or crimes of which he is accused.” It would be unreasonable
to conclude that, from a determination that Mejia had a dispo-
sition to commit the same or similar sexual offenses, the jury
would therefore conclude that Mejia was likely to commit and
therefore did commit the kidnapping and assault crimes. Our
conclusion is reinforced by the facts that: 1) there was no sug-
gestion at trial that the prior misconduct evidence should be
used to prove the kidnapping and assault charges; and 2) the
jury was separately instructed on the kidnapping and assault
charges to find that the facts were true beyond a reasonable
doubt. Moreover, in addition to rejecting two of the sexual
offense charges, the jury acquitted Mejia of one of the firearm
special allegations, suggesting that the jury did not use the
uncharged conduct to find Mejia guilty of the non-sexual
offense allegations in contravention of the Winship beyond a
reasonable doubt requirement. We therefore hold that the
infirm jury instructions did not infuse the trial with unfairness
so as to deny Mejia due process of law with respect to the
assault and kidnapping charges. We conclude that there is not
a reasonable likelihood that the jury applied the challenged
instructions in a way that violates the Constitution.

                               IV

  Mejia next contends that admission of Norma’s testimony
was impermissible propensity evidence that violated his
                        MEJIA v. GARCIA                    9329
clearly established due process rights. Our precedent squarely
forecloses this argument. In Alberni v. McDaniel, 

(9th Cir. 2006), cert. denied, 

(2007), we
reviewed a post-AEDPA habeas petition in which the peti-
tioner argued that admission of propensity evidence (in his
case evidence of past violent actions in his second-degree
murder case) at his trial violated clearly established due pro-
cess jurisprudence. 

We determined that admis-
sion of the propensity evidence was not contrary to clearly
established law. 

Referring to a footnote at the
conclusion of the Estelle opinion, stating “[b]ecause we need
not reach the issue, we express no 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 

n.5, we held that the
Supreme Court had “expressly reserved consideration of the
issue at hand in Estelle.” 

. Accord-
ingly, we concluded that the state court had not acted objec-
tively unreasonably in determining that the propensity
evidence introduced against the defendant did not violate his
due process. 

   [4] Mejia can point to no Supreme Court precedent estab-
lishing that admission of propensity evidence, as here, to lend
credibility to a sex victim’s allegations, and thus indisputably
relevant to the crimes charged, is unconstitutional. We cannot
say that the California Court of Appeal decision was contrary
to clearly established Supreme Court precedent.

   [5] Mejia next suggests that admission of the propensity
evidence was an unreasonable application of general due pro-
cess principles, if not contrary to clearly established law. He
cites Loper v. Beto, 

(1972), in which the
Supreme Court held that the introduction of uncounseled con-
victions, in violation of Gideon v. Wainwright, 

(1963), to impeach the defendant’s credibility violated due
process. 

. Mejia invokes the following
passage from Loper: “If the accused is forced to admit that he
9330                    MEJIA v. GARCIA
has a ‘record’ of past convictions, particularly if they are for
crimes similar to the one on trial, the danger is obvious that
the jury, despite instructions, will give more heed to the past
convictions as evidence that the accused is the kind of man
who would commit the crime on charge, or even that he ought
to be put away without too much concern with present guilt,
than they will to its legitimate bearing on credibility.” 

n. 11.

   Mejia contends that the use of an uncounseled conviction
to impeach the defendant’s testimony violates due process
because the jurors may infer propensity and seek to punish the
accused for the prior offenses. From this he infers that surely
introduction of conduct for which the defendant has not even
been charged should violate due process. We think that appel-
lant places more weight on Loper than it can bear. The Loper
holding was grounded in the importance of the right to coun-
sel and the Supreme Court’s desire to avoid diluting the Gid-
eon holding by allowing convictions that violate Gideon later
to prejudice a defendant. See 

(“To permit a convic-
tion obtained in violation of Gideon v. Wainwright to be used
against a person either to support guilt or enhance punishment
for another offense . . . is to erode the principle of that case.
Worse yet, since the defect in the prior conviction was denial
of the right to counsel, the accused in effect suffers anew from
the deprivation of that . . . right.” (quotation omitted)).

   While allowing an uncharged offense might sound more
egregious than allowing an uncounseled conviction, the
United States Supreme Court has never established the princi-
ple that introduction of evidence of uncharged offenses neces-
sarily must offend due process. This case, moreover,
demonstrates a key difference between the introduction of
evidence of an uncounseled conviction and introduction of
evidence of uncharged offenses: Mejia, unlike the Loper
defendant, did have counsel to defend him against the prior
allegations, and specifically to cross-examine and mount a
vigorous defense against the alleged prior victim, rendering
                            MEJIA v. GARCIA                           9331
the Loper principle inapposite. We reject Mejia’s contention
that the California Court of Appeal’s decision concerning the
propensity evidence was an unreasonable application of
Supreme Court law.5 The introduction of this evidence in the
total context of this case did not render the trial fundamentally
unfair.

   In sum, the district court correctly determined that the
infirm jury instructions given at Mejia’s trial did not render
Mejia’s assault and kidnapping convictions in violation of
clearly established law, and the district court correctly con-
cluded that admission of the evidence of prior uncharged sex-
ual offenses did not violate clearly established law concerning
due process as established by the Supreme Court.

   AFFIRMED.




  5
    Our holding in United States v. LeMay, 

(9th Cir. 2001),
supports our conclusion that admission of the propensity evidence did not
violate Mejia’s due process rights. In LeMay, on direct appeal rather than
collateral review, we upheld introduction of evidence under Federal Rule
of Evidence 414—which is roughly analogous to California Evidence
Rule 1108, allowing former acts evidence with respect to allegations of
child molestation—as being consistent with due process requirements. 

We noted that the Rule 414 evidence must pass the requirements
of Rules 402 and 403, 

the federal analogs to California Evi-
dence Rule 352 under which Norma’s testimony was admitted. We rea-
soned that due process requires that admission of prejudicial evidence not
render a trial fundamentally unfair, which Rule 402, ensuring relevance,
and Rule 403, guarding against overly prejudicial evidence, together guar-
antee. 

Rule 352 establishes a similar threshold for
the propensity evidence introduced at Mejia’s trial, suggesting that under
LeMay, Rule 352, like Federal Rules 402 and 403, safeguards due process
and protected Mejia’s trial from fundamental unfairness.