FILED
NOT FOR PUBLICATION SEP 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ALEJANDRO RANGEL GONZALEZ, No. 09-17066
Petitioner - Appellant, D.C. No. 2:05-cv-01954-LKK-
GGH
v.
DAVID L. RUNNELS, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted August 30, 2010
San Francisco, California
Before: B. FLETCHER, TALLMAN, and RAWLINSON, Circuit Judges.
Petitioner Alejandro Gonzalez (Gonzalez) appeals the district court’s denial
of his petition for a writ of habeas corpus. Gonzalez contends that his due process
rights were violated when the trial court declined to instruct the jury on the lesser
related offense of grossly negligent discharge of a firearm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
“Because [Gonzalez] filed his habeas petition after April 24, 1996, his
appeal is governed by the Antiterrorism and Effective Death Penalty Act
(AEDPA).” Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir. 2009), cert. denied, 130
S.Ct. 2103 (2010) (citation omitted). “Under AEDPA, [Gonzalez’s] petition can
be granted only if the state court determination resolving his claims was contrary
to, or involved an unreasonable application of, clearly established Federal law or
was based on an unreasonable determination of the facts.” Id. (citation, alterations,
and internal quotation marks omitted). “A state court’s decision is contrary to
clearly established federal law if it (1) applies a rule that contradicts the governing
law set forth in Supreme Court cases, or (2) confronts a set of facts materially
indistinguishable from a Supreme Court decision and nevertheless arrives at a
different result.” Id. (citation omitted). “A state court’s decision is an
unreasonable application of clearly established federal law if the state court
identifies the correct governing legal principles from Supreme Court decisions but
unreasonably applies that principle to the facts of the prisoner’s case.” Id. (citation
omitted).
In denying Gonzalez’s due process claim, the California Court of Appeal
referred to the United States Supreme Court’s decision in Hopkins v. Reeves, 524
U.S. 88, 96-97 (1998), which held that “[a]lmost all States . . . provide instructions
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only on those offenses that have been deemed to constitute lesser included offenses
of the charged crime. [This Court] ha[s] never suggested that the Constitution
requires anything more.” (citation and footnote reference omitted). We agree that
Gonzalez’s due process claim is foreclosed by Hopkins, as identified by the
California Court of Appeal. In this case, the state was not required to provide
instructions on lesser related offenses. Nevertheless, Gonzalez was free to, and
actually did, argue to the jury that he lacked sufficient intent to commit the charged
crimes of attempted murder and shooting at an occupied vehicle, and that his crime
was more analogous to grossly negligent discharge of a firearm.
Accordingly, we conclude that the state court’s resolution of Gonzalez’s due
process claim was not an unreasonable application of clearly established federal
law.
AFFIRMED.
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