                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 14 2011

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



                           FOR THE NINTH CIRCUIT


KENNETH M. SUTTON,                              No. 07-36019

             Petitioner - Appellant,            D.C. No. CV-07-05148-RBL

       v.
                                                MEMORANDUM*
JOHN GAY,

             Respondent - Appellee.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                            Submitted March 7, 2011**
                               Seattle, Washington

Before: McKEOWN, FISHER and GOULD, Circuit Judges.

      Kenneth M. Sutton petitions for habeas corpus relief after being convicted of

burglary and assault and receiving a 152-month sentence. His petition is subject to

the Antiterrorism and Effective Death Penalty Act of 1996. See Furman v. Wood,

190 F.3d 1002, 1004 (9th Cir. 1999). The district court denied Sutton’s petition.

        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
         The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We review de novo, and affirm. See Beardslee v. Woodford, 358 F.3d 560, 568

(9th Cir. 2004).

      Sutton was not denied a “meaningful opportunity to present a complete

defense” when the trial court refused to permit his cousin to testify. Crane v.

Kentucky, 476 U.S. 683, 690 (1986). “A defendant has no right . . . to present

irrelevant evidence,” and the excluded testimony was not relevant because it would

have established only that the victim was also assaulted by another person days

after the assault for which Sutton was charged. Wood v. State of Alaska, 957 F.2d

1544, 1549 (9th Cir. 1992); see also Holmes v. South Carolina, 547 U.S. 319, 326-

27 (2006).

      The trial court did not violate the Double Jeopardy Clause by imposing two

weapon enhancements to Sutton’s sentence based on his use of the same deadly

weapon against the same victim during the commission of the separate crimes of

burglary and assault. “With respect to cumulative sentences imposed in a single

trial, the Double Jeopardy Clause does no more than prevent the sentencing court

from prescribing greater punishment than the legislature intended.” Missouri v.

Hunter, 459 U.S. 359, 366 (1983). In determining whether the Washington state

legislature intended courts to impose two weapon enhancements in cases like this

one, we are bound to accept the Washington courts’ construction of that state’s


                                          2
statutes. See id. at 368. The Washington Supreme Court explicitly stated, in

rejecting Sutton’s request for review, that the statute at issue “required” the trial

court “to impose two consecutive deadly weapon enhancements.” See also State v.

Huested, 74 P.3d 672, 673 (Wash. Ct. App. 2003) (“This statute unambiguously

shows legislative intent to impose two enhancements based on a single act of

possessing a weapon, where there are two offenses eligible for an enhancement.”).

Accordingly, there was no double jeopardy violation.

      AFFIRMED.




                                           3
