                                                                              FILED
                            NOT FOR PUBLICATION                               APR 23 2013

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


BYRON R. KOERING,                                No. 10-55585

               Petitioner - Appellant,           D.C. No. 5:09-cv-00374-SJO-DTB

  v.
                                                 MEMORANDUM*
TERRI GONZALEZ,

               Respondent - Appellee.


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

                        Argued and Submitted March 5, 2013
                               Pasadena, California

Before: GOODWIN, WARDLAW, and GOULD, Circuit Judges.

       Pursuant to a limited certificate of appealability,1 Bryon Koering challenges

the district court’s denial of his habeas corpus petition. We affirm.


           *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       1
        Koering’s motion to expand the certificate of appealability to self-defense
and defense-of-property issues is DENIED. 9th Cir. R. 22-1(e). No “jurists of
reason could disagree with the district court’s resolution” of those issues. Miller-
El v. Cockrell, 537 U.S. 322, 327 (2003).
      Our habeas review is governed by the Antiterrorism and Effective Death

Penalty Act (“AEDPA”). AEDPA provides that if a federal habeas petitioner is in

custody pursuant to a state court judgment and the petitioner’s “claim . . . was

adjudicated on the merits in” state court proceedings,2 our review is deferential. 28

U.S.C. § 2254(d). We may grant the writ only if: (1) the state adjudication “was

contrary to, or involved an unreasonable application of” clearly established federal

law, as determined by the Supreme Court; or (2) the state adjudication “was based

on an unreasonable determination of the facts in light of the evidence presented.”

Id. §§ 2254(d)(1)–(2).

      The California Court of Appeal’s decision affirming the trial court’s

decision not to instruct on a lesser included offense does not satisfy either prong of

§ 2254(d). Koering was entitled to jury instructions regarding his theory of

defense, and the trial court’s instructions were consistent with his theory. See

Mathews v. United States, 485 U.S. 58, 63 (1988); California v. Trombetta, 467

U.S. 479, 485 (1984); Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000).



      2
       Where, as here, the state court rejects a “federal claim without expressly
addressing that claim, a federal habeas court must presume that the federal claim
was adjudicated on the merits” for AEDPA purposes. Johnson v. Williams, 133 S.
Ct. 1088, 1096 (2013); Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011).
Although habeas petitioners may overcome the presumption in some
circumstances, see Harrington, 131 S. Ct. at 785, Koering has not done so here.

                                         -2-
Although Koering contends that the jury should have received instructions

regarding brandishing a firearm, see Cal. Penal Code § 417, he did not rely on a

brandishing theory of defense, and nothing in the record shows that he even sought

such an instruction.

      Koering then argues that the jury should have received a brandishing-a-

firearm instruction because brandishing is a lesser included offense of assault with

a firearm. Id. § 245(a)(2). This argument runs counter to California authority

holding that section 417 brandishing is not a lesser included offense of section 245

assault. See People v. Steele, 99 Cal. Rptr. 2d 458, 462–65 (Ct. App. 2000);

People v. Escarcega, 117 Cal. Rptr. 595, 599–600 (Ct. App. 1974). But even

assuming arguendo that brandishing were a lesser included offense of assault, the

“failure of a state trial court to instruct on lesser included offenses in a non-capital

case does not present a federal constitutional question.” Windham v. Merkle, 163

F.3d 1092, 1106 (9th Cir. 1998); Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir.

1984).

      AFFIRMED.




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