                                                                           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                            NOT FOR PUBLICATION                             JAN 21 2011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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