                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 17 2010

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




                            FOR THE NINTH CIRCUIT



ELIJAH WHITE,                                    No. 09-16270

              Petitioner - Appellant,            D.C. No. 1:07-cv-01257-IEG-PCL

  v.
                                                 MEMORANDUM *
DEBRA DEXTER, Warden,

              Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Eastern District of California
                 Irma E. Gonzalez, Chief District Judge, Presiding

                          Submitted November 1, 2010 **
                            San Francisco, California

Before: HALL and THOMAS, Circuit Judges, and LASNIK, Chief 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 Robert S. Lasnik, Chief United States District Judge
for the Western District of Washington, sitting by designation.
      Elijah White, a California state prisoner, appeals the district court’s denial of

his habeas corpus petition. We affirm. Because the factual and procedural

background is familiar to the parties, we need not recount it here.

                                            I

      White challenges the jury instructions as ambiguous. On federal habeas

review, the question is not whether the instruction was deficient. Rather, the

question is “whether the ailing instruction by itself so infected the entire trial that

the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72

(1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Here, the

California Court of Appeal determined that White’s proposed definitions of

residence and knowledge do not accurately reflect California law. We are bound

by that determination. Bradshaw v. Richey, 546 U.S. 74, 76 (2005). The state

appellate court also determined that the “regularly resided” element was “squarely

before the jury,” even though not separately enumerated in the jury instructions.

This conclusion was not objectively unreasonable. 28 U.S.C. § 2254(d). Thus, the

district court properly concluded that the jury instructions given by the state trial

court did not violate White’s due process rights.




                                            2
                                           II

      The California Court of Appeal’s conclusion that the term residence in Cal.

Penal Code § 290 was not unconstitutionally vague was not an objectively

unreasonable application of federal law. 28 U.S.C. § 2254(d). As the California

Court of Appeal pointed out, the definition given to the jury was the same

definition in the prevailing case law prior to White’s arrest, and should have given

him notice of what conduct was prohibited.

                                          III

       After thoroughly reviewing the record, and applying the appropriate

standard of review, we conclude that there was sufficient evidence to support the

verdict. See Jackson v. Virginia, 443 U.S. 307, 326 (1979) (explaining that a

federal court may grant a petition for habeas corpus due to insufficient evidence if

it finds that no rational trier of fact could have found proof of guilt beyond a

reasonable doubt.).

      AFFIRMED.




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