                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 26 2010

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




                             FOR THE NINTH CIRCUIT



 DEREK TODD FULBRIGHT,                            No. 08-55369

               Petitioner - Appellant,            D.C. No. 2:05-cv-04280-DDP

   v.
                                                  MEMORANDUM *
 D. L. RUNNELS, Warden,

               Respondent - Appellee.



                     Appeal from the United States District Court
                        for the Central District of California
                     Dean D. Pregerson, District Judge, Presiding

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        California state prisoner Derek Todd Fulbright appeals from the district

court’s order denying his 28 U.S.C. § 2254 habeas 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

EOH/Research
       Fulbright contends that the trial court’s failure to give sua sponte a jury

instruction on what constituted a lawful arrest was a violation of his due process

rights. Even assuming that the trial court should have given the instruction,

Fulbright has not shown that he was prejudiced, in light of the evidence and the

instructions as a whole. See Mendez v. Knowles, 556 F.3d 757, 768 (9th Cir.

2009); see also Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (stating that

“omission, or an incomplete instruction, is less likely to be prejudicial than a

misstatement of the law”).

       Fulbright next contends that his trial counsel provided ineffective assistance

by agreeing to an additional special jury instruction that allegedly negated his

defense of resisting unlawful arrest. Fulbright has not demonstrated a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

694 (1984).

       The state court’s rejection of these claims was neither contrary to, nor an

unreasonable application of, clearly established federal law. See 28 U.S.C.

§ 2254(d)(1).

       AFFIRMED.




EOH/Research                               2                                       08-55369
