FILED
NOT FOR PUBLICATION JAN 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
No. 08-56630
MARK SANDOVAL,
D.C. No. 8:04-CV-00360-FMC-AJW
Petitioner - Appellant,
v.
MEMORANDUM *
C. K. PLILER, Warden, et al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Central District of California
Florence-Marie Cooper, District Judge, Presiding
Submitted December 14, 2010 **
Before: SKOPIL, FARRIS, and LEAVY, Circuit Judges.
California state prisoner Mark Sandoval appeals from the district court’s
judgment denying his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to
28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
Sandoval contends his constitutional right to present a defense was violated
when the state trial court refused to instruct the jury on imperfect self-defense. As
an initial matter, we reject the State’s contention that Sandoval failed to exhaust
this claim as it was fairly presented in his petition for review filed in the California
Supreme Court. See Baldwin v. Reese, 541 U.S. 27, 32 (2004) (noting petitioner
may raise a federal issue by citing to applicable federal law).
On the merits, we deny relief because Sandoval fails to demonstrate the state
court’s decision was contrary to or an unreasonable application of clearly
established federal law as determined by the United States Supreme Court, or an
unreasonable determination of the facts. See 28 U.S.C. §§ 2254(d)(1), (2). There
was not sufficient evidence from which a jury could reasonably have concluded
that Sandoval had an actual but unreasonable belief that his life was in imminent
danger. See Menendez v. Terhune, 422 F.3d 1012, 1028-30 (9th Cir. 2005) (no
constitutional violation when state trial court refused to instruct on imperfect self-
defense that was not supported by sufficient evidence); Solis v. Garcia, 219 F.3d
922, 929 (9th Cir. 2000) (per curiam) (no constitutional error in refusing to give an
instruction not supported by evidence).
AFFIRMED.
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