                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 16 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GERARDO GRADILLAS,                               No. 09-56233

              Petitioner - Appellant,            D.C. No. 2:09-cv-02238-JVS-CT

  v.
                                                 MEMORANDUM *
MARTIN BITER, Acting Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                           Submitted October 12, 2012 **
                               Pasadena, California

Before: KLEINFELD and McKEOWN, Circuit Judges, and QUIST, Senior
District Judge.***




        *
             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).
        ***
             The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for Western Michigan, sitting by designation.
      Gerardo Gradillas appeals from the district court’s decision denying his

petition for a writ of habeas corpus. Reviewing de novo, we affirm.

      Gradillas argues that the trial court erred by not instructing the jury sua

sponte on transferred self defense and that his trial counsel provided ineffective

assistance by failing to request a jury instruction on transferred self defense. On

direct review, the California Court of Appeal determined that the “jury was

properly instructed,” “counsel raised the self-defense issue in closing argument,”

and there was “no reasonable probability the result would have been more

favorable to appellant had additional instructions been given or arguments raised.”

The California Supreme Court denied Gradillas’s petition for review.

      Gradillas petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 (as

amended by the Antiterrorism and Effective Death Penalty Act of 1996). The

district court properly determined that the California Court of Appeal “did not

commit constitutional error in concluding that [Gradillas] received a fair trial in

spite of the lack of a transferred self-defense instruction” and that Gradillas could

not establish deficient performance and prejudice under Strickland. Gradillas has

failed to show that the state court’s decision was “contrary to” or an “unreasonable

application” of clearly established Supreme Court precedent or that it was “based

on an unreasonable determination of the facts.” 28 U.S.C. § 2254(d).

      AFFIRMED.
