                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 27 2010

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




                            FOR THE NINTH CIRCUIT



RAYMOND THOMAS PARHAM,                           No. 09-15282

               Petitioner - Appellant,           D.C. No. 2:06-cv-02624-GEB

  v.
                                                 MEMORANDUM *
KATHY MENDOZA-POWERS, Warden;
ATTORNEY GENERAL OF THE STATE
OF CALIFORNIA,

               Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                            Submitted October 19, 2010 **

Before:        O’SCANNLAIN, TALLMAN, and BEA, Circuit Judges.

       California state prisoner Raymond Thomas Parham appeals pro se from the

district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction under 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
       Parham contends that the trial court erred when it failed to instruct the jury

sua sponte on the lesser included offense of simple assault. After an independent

review of the record, we conclude that the state court’s decision denying this claim

was not objectively unreasonable because the Supreme Court has not clearly

established that due process requires giving a lesser included offense in a non-

capital case, and the defendant did not request the instruction because it was not

part of his theory of defense. See Nunes v. Ramirez-Palmer, 485 F.3d 432, 442

(9th Cir. 2007) (in the absence of a reasoned state court decision, this court must

perform an independent review of the record to determine whether a decision was

objectively unreasonable in light of relevant federal law); see also Bashor v. Risley,

730 F.2d 1228, 1240 (9th Cir. 1984) (failure of a state court to instruct on a lesser

offense fails to present a federal constitutional question and will not be considered

in a federal habeas corpus proceeding, but a defendant is entitled to an instruction

on his theory of defense).

      Parham also contends that there was constitutionally insufficient evidence to

support a conviction for assault with the intent to commit rape. The state court’s

decision rejecting this claim was not contrary to, and did not involve an

unreasonable application of, clearly established federal law, as determined by the

Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1); see also Jackson


                                           2                                    09-15282
v. Virginia, 443 U.S. 307, 324 (1979) (to prevail on an insufficiency of evidence

claim, a habeas petitioner must show that “no rational trier of fact could have

found proof of guilt beyond a reasonable doubt”).

      Finally, Parham contends that the trial court erred by imposing an upper

term sentence based on facts that were not proven to a jury beyond a reasonable

doubt. Although the state court’s decision was contrary to clearly established

Supreme Court precedent, see Cunningham v. California, 549 U.S. 270, 288-93

(2007), the error was harmless because we do not have a “grave doubt” as to

whether the jury would have found, beyond a reasonable doubt, that Parham had

numerous prior convictions apart from the one used to enhance his sentence by one

year. See Butler v. Curry, 528 F.3d 624, 643, 648-49 (9th Cir. 2008) (this court

can only grant relief if there is a “grave doubt” as to whether a jury would have

found the relevant aggravating factors beyond a reasonable doubt).

      To the extent that Parham raises new issues for the first time in his reply

brief, we decline to consider them. See Eberle v. City of Anaheim, 901 F.2d 814,

818 (9th Cir. 1990).

      AFFIRMED.




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