
    Sofalo Matese BROWN, Petitioner-Appellant, v. James D. HARTLEY, Warden, Respondent-Appellee.
    No. 09-17118.
    United States Court of Appeals, Ninth Circuit.
    Submitted May 24, 2011.
    
    Filed June 6, 2011.
    Kathleen Coleen Page, Page & Page Attorneys at Law, San Francisco, CA, for Petitioner-Appellant.
    Sofalo Mátese Brown, Avenal, CA, pro se.
    Christina Hitomi Simpson, Deputy Attorney General, Office of the California Attorney General, Sacramento, CA, for Respondent-Appellee.
    Before: PREGERSON, THOMAS, and PAEZ, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

California state prisoner Sofalo Mátese Brown appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253 and we affirm.

Brown contends that the state prosecutor in his criminal trial denied his constitutional rights to due process and a fair trial by intimidating a defense witness who chose not to testify.

The California Court of Appeal’s determination that there was no prosecutorial misconduct was not contrary to, or an unreasonable application of, clearly established federal law as determined by the Supreme Court, and was not based on an unreasonable determination of the facts. See 28 U.S.C. § 2254(d); Penry v. Johnson, 532 U.S. 782, 792-93, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001).

We construe the inclusion of an uncertified issue in the opening brief as a motion to expand the certificate of appealability. See 9th Cir. R. 22-1(e). So construed, the motion is denied. See Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir.1999) (per curiam).

Kathleen C. Page’s motion to withdraw as Brown’s counsel is granted. We construe Brown’s letter dated December 31, 2010, as a motion for appointment of new counsel, and deny the motion.

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