dissenting:
I respectfully dissent. The majority fails to adhere to our standard of review. The California courts made no factual error and no error of California law. Federal law does not, independently, require an entrapment instruction in a state-court criminal trial when there is insufficient evidence to support it as a matter of state law. Accordingly, I would reverse the district court’s conditional grant of habeas relief to Petitioner.
The Supreme Court of the United States has just chastised this court, in the strongest possible terms, for substituting, our judgment'for that of a state court on matters of federal law, including legal issues that involve an interpretation and application of facts. Woodford, v. Visciotti, — U.S. —, 123 S.Ct. 357, 154 L.E,d.2d 279 (2002) (per curiam); Early v. Packer, — U.S. —, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). We have even less justification for substituting our judgment for that of a state court on matters of its own state law. Indeed, we wholly lack authority to second-guess a. state, court on a question of state law. Yet that is precisely what the majority does here, in clear contravention of both AEDPA and the Supreme Court’s interpretation of it.
Petitioner was convicted in state court on one count of selling cocaine in violation of California Health & Safety Code § 11352(a). At trial, he argued that he had been entrapped by the police officers’ use of a decoy who was obviously suffering symptoms of withdrawal from drugs. Petitioner contended that the decoy’s plight induced him to commit a crime that he would not otherwise have committed. He requested an entrapment instruction, which the state trial court refused to give. On appeal, the California Court of Appeal held that the trial court properly declined to instruct the jury on entrapment because Petitioner had not presented -substantial evidence in support of that theory:
Here, there was no substantial evidence to support entrapment instructions. This was an ordinary, run-of-the-mill, undercover drug operation in which a decoy was used. The officers used Flores as a “hook” in locating a source for cocaine; [Petitioner] expressed his willingness to assist in finding cocaine, and [Petitioner] took actions toward accomplishing that goal. He located a source for 'the drugs and exchanged money for the drugs. The police did not conduct themselves improperly. Neither officer badgered, cajoled, nor did any other affirmative act likely to induce a normally law-abiding person to commit the crime. [Petitioner] was simply offered the opportunity to commit the crime.
... [T]he average person would not, as[Petitioner] contends, purchase illegal drugs to aid a stranger, even if the stranger .appeared to be a drug addict going through withdrawal.... (Cf. People v. Lee (1990) 219 Cal.App.3d 829, 268 Cal.Rptr. 595[sailor working with police befriends drug dealer to assist in gain*1103ing dealer’s confidence; such casual, brief, non-intimate acquaintances does not constitute entrapment]; compare with People v. McIntire [ (1979) ] 23 Cal.3d 742, 153 Cal.Rptr. 237, 591 P.2d 527 [facts sufficient to raise entrapment defense when defendant acquiesces to strong and persistent pressure applied by police through defendant’s younger brother based upon sympathy aroused by family problems].)
People v. Bradley, No. B112640 (Cal. Ct. App. filed Nov. 17, 1998) (footnotes omitted). The California Supreme Court denied review in an unpublished decision.
Petitioner then initiated this federal ha-beas action. The district court held that the California courts erred as a matter of California law when they concluded that Petitioner had failed to present sufficient evidence to be entitled to a jury instruction on entrapment. Because Petitioner had been entitled to the instruction under state law, the court concluded, the state court’s failure to give the instruction violated Petitioner’s due process rights. The majority agrees and, by doing so, essentially reviews de novo questions of state law.
We may grant habeas relief under 28 U.S.C. § 2254(d) only if the decision of the California Court of Appeal (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) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” In reviewing the petition, we are “bound by the state court’s interpretations of state law,” and we must presume the correctness of the state court’s factual findings in the absence of “clear and convincing evidence” to the contrary. Bains v. Cambra, 204 F.3d 964, 972 (9th Cir.), cert. denied, 531 U.S. 1037, 121 S.Ct. 627, 148 L.Ed.2d 536 (2000); 28 U.S.C. § 2254(e)(1). Additionally, the standard for finding an unreasonable application of federal law is a high one. See Williams v. Taylor, 529 U.S. 362, 411, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (“[A] federal habe-as court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”). The majority’s opinion neither presumes the correctness of the state court’s factual findings nor holds itself bound by the state court’s interpretation of state law.
Here we are reviewing the California Court of Appeal’s holding that, as a matter of California law, Petitioner failed to present sufficient evidence to be entitled to an instruction on entrapment. Therefore, we are bound by that holding unless it involves “an unreasonable determination of the facts in light of the evidence presented” or is contrary to federal law. 28 U.S.C. § 2254(d). “A state court has the last word on the interpretation of state law.” Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir.2002).
The majority’s contention that the California Court of Appeal’s determination was “an unreasonable determination of the facts in light of the evidence presented” is flawed. The majority identifies two “factual” conclusions made by the California Court of Appeal that the majority finds unreasonable: (1) the Court of Appeal determined that “[n]either officer badgered, cajoled, nor did any other affirmative act likely to induce a normally law-abiding person to commit the crime,” maj. op. at 1096; and (2) the “Court of Appeal failed to resolve its doubts as to whether a normally law-abiding person would have been induced to commit the crime out of sympathy for Flores in favor of [Petitioner],” maj. op. at 1097. Neither of those claimed *1104errors is sufficient to merit relief under our standard of review, as the majority apparently realizes when it states that “it is the due process violation, not the state law error, that triggers our habeas relief.” Maj. op. at 1100.
Under California law, as the majority concedes, maj. op. at 1095-96, a defendant must present substantial evidence of entrapment to be entitled to a jury instruction on the defense. People v. Watson, 22 Cal.4th 220, 91 Cal.Rptr.2d 822, 990 P.2d 1031, 1032 (2000). Substantial evidence is “evidence enough to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable men could have concluded” that the defendant was entrapped. People v. Flannel, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, 10 (1980) (citation and internal quotation marks omitted).
“In California, the test for entrapment focuses on the police conduct and is objective.” Watson, 91 Cal.Rptr.2d 822, 990 P.2d at 1032 (emphasis added); see also People v. Barraza, 23 Cal.3d 675, 153 Cal.Rptr. 459, 591 P.2d 947, 954-55 (1979).1 To be entitled to an instruction on entrapment, a defendant must present substantial evidence that “the conduct of the law enforcement agent [was] likely to induce a normally law-abiding person to commit the offense.” Id. at 955. The law “presume[sj that such a person would normally resist the temptation to commit a crime presented by the simple opportunity to act unlawfully.” Id. (emphasis added). The question is whether “the police or their agents ... pressure[d] the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.” Id. “[T]he rule is clear that ruses, stings, and decoys are permissible stratagems in the enforcement of criminal law, and they become invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an otherwise law-abiding person to commit a crime.” Provigo Corp. v. Alcoholic Beverage Control Appeals Bd., 7 Cal.4th 561, 28 Cal.Rptr.2d 638, 869 P.2d 1163, 1167 (1994) (emphasis added) (citation and internal quotations omitted). An appeal to a defendant’s sympathy by police can result in entrapment but only if that appeal would cause the “normally law-abiding person” to turn to crime. Barraza, 153 Cal.Rptr. 459, 591 P.2d at 955. Whether the police conduct at issue constitutes entrapment is “judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand.” Id.
Viewed in the light most favorable to Petitioner, the evidence shows that he was approached by a police decoy who was demonstrating overt signs of drug withdrawal. The decoy vomited just before approaching Petitioner, smelled like vomit, appeared “pinkish, yellowish, sick,” and was “tweaking and twitching.” The decoy asked Petitioner to “get something” and to help him get a fix because he was hurting. He repeatedly told Petitioner that he was really ill and needed drugs. Petitioner had seen the decoy before, but did not know him.2 Nevertheless, Petitioner de*1105cided to purchase drugs and provide them to the decoy.
It is clear that the decoy’s withdrawal symptoms appealed to Petitioner’s sympathy and, I expect, would appeal to the sympathy of nearly every normally law-abiding person. However, that fact, standing alone, is insufficient to permit an entrapment defense under California law. Instead, the appeal to sympathy must have been to an extent and degree that were likely to cause a normally law-abiding person to buy or sell drugs. As the California Court of Appeal permissibly arid reasonably concluded, a normally law-abiding person confronted by an ill, drug-addicted stranger (or casual acquaintance) in the throes of withdrawal — like the decoy in this case — would not respond by providing illegal drugs to Mm. That conclusion is particularly reasonable in view of the fact that there are several obvious lawful alternatives available to help' a manifestly ill person, such as calling 911 or taMng the person to a crime. Cf. People v. Graves, 93 Cal.App.4th 1171, 113 Cal.Rptr.2d 708, 712-13 (2001) (holding that entrapment did not apply in part because lawful responses were available to a request for help made at the behest of law enforcement, reasoning that a “normally law-abiding person” would opt for the lawful response).
In short, the California courts reasonably concluded that Petitioner had not presented enough evidence to support the giving of state-law entrapment instructions, because the facts, even when viewed in favor of Petitioner, did not show government conduct likely to induce a normally law-abiding person to break the law by selling cocaine. Even if we disagree with the California courts, we are obliged to give effect to their reasonable determination. Packer, — U.S. at -, 123 S.Ct. at 366.
The majority explicitly rests its holding on the conclusion that Petitioner’s due process rights were violated by the California courts’ refusal to provide an entrapment instruction. Maj. op. at 1100. It appears that the majority finds two distinct due process violations: (1) Petitioner was entitled to an entrapment defense as a matter of constitutional law even though he was not entitled to it under state law; and (2) the judge in the second trial was not permitted to give different jury instructions than the judge in the first trial, which ended in a mistrial. The majority fails to cite any persuasive authority for the proposition that Petitioner was denied due process.
Petitioner has cited no United States Supreme Court case, and I am aware of none, that would require the giving of an entrapment instruction in a state-court criminal trial when there is insufficient evidence to support such an instruction under state law. Cf. Bueno v. Hallaban, 988 F.2d 86, 88 (9th Cir.1993) (per curiam) (holding that a federal criminal defendant’s entitlement to an entrapment instruction is not constitutionally based and that Arizona, consistent with due process, could require that a state defendant “admit all of the elements of each offense” as a prerequisite to receiving a jury instruction on entrapment); see also United States v. Russell, 411 U.S. 423, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973) (stating that the entraprnent defense itself “is not of a constitutional dimension”). Indeed, the majority recognizes that a due process violation occurs from the failure to instruct as to a recognized defense only in the event that “ ‘there exists evidence sufficient for a *1106reasonable jury • to find’ ” in accordance with the proffered defense. Maj. op. at 1098 (quoting Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 99 L.Ed.2d 54 (1988)).
The majority recites the proposition that “the state court’s failure to correctly instruct the jury on the defense may deprive the defendant of his due process right to present a defense.” Maj. op. at 1099. Relying on that principle, the majority states that the California courts’ refusal to give an entrapment instruction denied Petitioner due process because it deprived him of his “only defense.” Maj. op. at 1099. But a defendant does not have a right to present whatever defense he or she desires, whether or not supported by the law, and a state court may refuse to give an instruction to which a defendant is not entitled even if it is the only theory that the defendant wishes to advance. The California courts conclusively held that Petitioner was not entitled to the entrapment instruction under California law, so the failure to give an instruction was not arbitrary. The question, therefore, is whether Petitioner was entitled to an entrapment instruction as a matter of federal constitutional law.
The majority cites no meaningful authority that it is “clearly established federal law” that a defendant in Petitioner’s circumstance is entitled to a defense of entrapment. Much is made of the fact that a defendant is entitled to a “complete defense.” Maj. op. at 1098. Although that statement is accurate, it is entirely unhelpful to the present inquiry. We have authority to answer only a very narrow question: Did the California courts’ refusal to give the entrapment instruction deprive Petitioner of due process? All of the cases cited by the majority simply beg the question: It is undisputed that Petitioner had a right to a complete defense and that California could not arbitrarily deprive him of his chosen defense. The only matter of moment is whether an entrapment instruction was a part of a defense to which Petitioner was constitutionally entitled.
The majority dismisses the need for a precedent stating that a defendant presented with the opportunity to commit a crime by a drug-affected decoy is per se entitled to an entrapment instruction as a matter of federal constitutional law, regardless of the state law of entrapment. Such a “spotted calf’ is not needed, the majority holds, because “[Petitioner] more than sufficiently supported his defense theory of entrapment.” Maj. op. at 1101. The foregoing assertion is incorrect as a matter of law.
We know that Petitioner did not “sufficiently support[ ]” his ■ theory of entrapment as a matter of California law. We know this because the California Court of Appeal has spoken directly to the issue, and the California Supreme .Court did not disturb its holding.
If the majority is stating, instead, that Petitioner “sufficiently supported” his defense theory as a matter of federal law, “as determined by the Supreme Court of the United States,” then it is necessary to find a Supreme Court precedent that “clearly established]” that defendants who satisfy a certain evidentiary threshold in a state criminal case governed by state law are constitutionally entitled to an entrapment instruction. As the majority concedes, no such case exists. ■
What those in the majority seem to be saying is that they consider the evidence sufficient to support an entrapment instruction. This kind of federal oversight of state-court proceedings is precisely what the Supreme Court in Visciotti and Packer has told us not to perform.
The majority also errs when it reasons that the giving of an entrapment instruction in the first trial shows that Petitioner was entitled to such an instruction under California law, maj. op. at 1097-98, or re*1107quired the California Court of Appeal to explain “why the second judge could unilaterally ignore the first trial judge’s findings of fact and conclusions of law regarding the entrapment instructions,” maj. op. at 1101. The California Court of Appeal held that, on the evidence presented, Petitioner was not entitled to an entrapment instruction under California law. By clear implication, this means that, as a matter of California law, the first trial judge erred. Petitioner is not constitutionally entitled to perpetuate an erroneous instruction in his favor.
Equally unpersuasive is the majority’s assertion that the judge’s decision not to give the entrapment instruction in the second trial was a “kind of unauthorized second-guessing [that] is impermissibly arbitrary and can amount to a violation of Due Process.” Maj. op. at 1098. The majority cites the California Court of Appeal’s recent decision in In re Alberto, 102 Cal.App.4th 421, 125 Cal.Rptr.2d 526, 580 (2002), maj. op. at 1098, for the proposition that “for one superior court judge, no matter how well intended, even if correct as a matter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.” (Internal quotation marks omitted.) The majority fails to observe a crucial distinction between the present case and Alberto. In Alberto, one trial judge overruled a coequal trial judge’s in-force bail determination in the same case. 125 Cal.Rptr.2d at 530. In this case, Petitioner’s first trial ended in a mistrial. The judge in a second trial is not compelled to follow determinations of fact or law established by the judge in an earlier proceeding that ended in a mistrial. To hold otherwise would undermine a basic tenet of California law. See Mouser v. Superior Court, 136 Cal.App.3d 110, 186 Cal.Rptr. 21, 23 (1982) (“ ‘The granting of a new trial places the parties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument....’ Thus, the granting of a new trial has the same effect as a mistrial.” (quoting CahPe-nal Code § 1180)); Veitch v. Superior Court of the County of Santa Clara, 89 Cal.App.3d 722, 152 Cal.Rptr. 822, 825 (1979) (same).
The fact that defense counsel allowed Petitioner’s statement from the first trial to be read into the record of the second trial without first having secured the judge’s ruling regarding an entrapment instruction may well constitute ineffective assistance of counsel. However, Petitioner makes no claim of ineffective assistance of counsel. We are not at liberty to distort his other claims so as to recognize this possibility.
In summary, the majority has failed to defer to the factual findings and state-law interpretation of the California courts, as we are required to do. When the correct standard of review is applied, reversal with instructions to deny the petition is required. I therefore dissent from the majority’s decision to affirm.
. Notably, one of Petitioner's requested instructions, CALJIC 4.61, is entitled "Entrapment — Objective Test — Guidance” and cautions, among other things, that such matters as the defendant's "subjective intent are not relevant to the determination of the question of whether entrapment occurred.”
. The majority quarrels with the state court's reference to Flores as a "stranger.” Maj. op. at 1097 n. 2. The California Court of Appeal's distinction between "casual, brief, tion-inti-mate acquaintances” on the one hand and "family” ties on the other shows that the court understood, as the majority puts it, that Petitioner and Flores were "acquaintance^” *1105who had at least seen each other “in passing.” Id. The state court made no factual error in this respect.