                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 21 2012

                                                                           MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JARVELL DEANDRE SMART,                           No. 09-15644

              Petitioner - Appellant,            D.C. No. 2:08-cv-00739-WBS-
                                                 CMK
  v.

ANTHONY HEDGPETH; ATTORNEY                       MEMORANDUM*
GENERAL OF THE STATE OF
CALIFORNIA,

              Respondents - Appellees.


                  Appeal from the United States District Court
                       for the Eastern District of California
                William B. Shubb, Senior District Judge, Presiding

                     Argued and Submitted February 16, 2012
                            San Francisco, California

Before: GRABER, BERZON, and TALLMAN, Circuit Judges.

       Petitioner-appellant Jarvell Deandre Smart appeals the district court’s denial

of his 28 U.S.C. § 2254 habeas petition challenging his California conviction for




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
aiding and abetting two counts of assault with a firearm and one count of shooting

at an occupied vehicle. We have jurisdiction, 28 U.S.C. § 2253, and we affirm.

      Smart claims that there was insufficient evidence to support his conviction

based on aiding and abetting liability. We review the California Court of Appeal’s

denial of this claim on the merits under the deferential standard of review set forth

in 28 U.S.C. § 2254(d)(1). Although the California court cited only state law, the

California standard for reviewing a sufficiency of the evidence claim is the same as

the established federal constitutional standard, see People v. Johnson, 606 P.2d

738, 750 (Cal. 1980) (citing Jackson v. Virginia, 443 U.S. 307 (1979)). Thus the

rejection of Smart’s identical state claim necessarily answered the federal

constitutional question.

      The state court’s determination that there was sufficient evidence of aiding

and abetting was not contrary to, or an unreasonable application of, established

federal law. See Jackson, 443 U.S. at 319. We are satisfied from our review of the

record that the evidence was sufficient for the jury to find that the violent attack

was a joint endeavor.

      Smart failed to exhaust his claim that there was insufficient evidence to

support aiding and abetting liability because Sergio David Calhoun (the principal)

was acting in self-defense. See Weaver v. Thompson, 197 F.3d 359, 364 (9th Cir.


                                           2
1999) (“The state courts have been given a sufficient opportunity to hear an issue

when the petitioner has presented the state court with the issue’s factual and legal

basis.”). Because California procedural rules would now bar consideration of this

new sufficiency of the evidence claim, see Carter v. Giurbino, 385 F.3d 1194,

1196-97 (9th Cir. 2004) (citing Ex parte Lindley, 177 P.2d 918, 926-27 (Cal.

1947)), the claim is technically exhausted but deemed procedurally defaulted,

Cooper v. Neven, 641 F.3d 322, 327 (9th Cir. 2011), cert. denied, 132 S. Ct. 558

(2011). Smart cannot overcome the procedural bar. See id.

      In any event, Smart’s self-defense claim is unavailing. The jury could

reasonably conclude that Calhoun meant to shoot at the two victims, both unarmed

bystanders, rather than returning the fire of others.

      AFFIRMED.




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