                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 17 2010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



ALEJANDRO RANGEL GONZALEZ,                        No. 09-17066

              Petitioner - Appellant,             D.C. No. 2:05-cv-01954-LKK-
                                                  GGH
  v.

DAVID L. RUNNELS, Warden,                         MEMORANDUM *

              Respondent - Appellee.



                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                       Argued and Submitted August 30, 2010
                             San Francisco, California

Before: B. FLETCHER, TALLMAN, and RAWLINSON, Circuit Judges.

       Petitioner Alejandro Gonzalez (Gonzalez) appeals the district court’s denial

of his petition for a writ of habeas corpus. Gonzalez contends that his due process

rights were violated when the trial court declined to instruct the jury on the lesser

related offense of grossly negligent discharge of a firearm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      “Because [Gonzalez] filed his habeas petition after April 24, 1996, his

appeal is governed by the Antiterrorism and Effective Death Penalty Act

(AEDPA).” Byrd v. Lewis, 566 F.3d 855, 859 (9th Cir. 2009), cert. denied, 130

S.Ct. 2103 (2010) (citation omitted). “Under AEDPA, [Gonzalez’s] petition can

be granted only if the state court determination resolving his claims was contrary

to, or involved an unreasonable application of, clearly established Federal law or

was based on an unreasonable determination of the facts.” Id. (citation, alterations,

and internal quotation marks omitted). “A state court’s decision is contrary to

clearly established federal law if it (1) applies a rule that contradicts the governing

law set forth in Supreme Court cases, or (2) confronts a set of facts materially

indistinguishable from a Supreme Court decision and nevertheless arrives at a

different result.” Id. (citation omitted). “A state court’s decision is an

unreasonable application of clearly established federal law if the state court

identifies the correct governing legal principles from Supreme Court decisions but

unreasonably applies that principle to the facts of the prisoner’s case.” Id. (citation

omitted).

      In denying Gonzalez’s due process claim, the California Court of Appeal

referred to the United States Supreme Court’s decision in Hopkins v. Reeves, 524

U.S. 88, 96-97 (1998), which held that “[a]lmost all States . . . provide instructions


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only on those offenses that have been deemed to constitute lesser included offenses

of the charged crime. [This Court] ha[s] never suggested that the Constitution

requires anything more.” (citation and footnote reference omitted). We agree that

Gonzalez’s due process claim is foreclosed by Hopkins, as identified by the

California Court of Appeal. In this case, the state was not required to provide

instructions on lesser related offenses. Nevertheless, Gonzalez was free to, and

actually did, argue to the jury that he lacked sufficient intent to commit the charged

crimes of attempted murder and shooting at an occupied vehicle, and that his crime

was more analogous to grossly negligent discharge of a firearm.

       Accordingly, we conclude that the state court’s resolution of Gonzalez’s due

process claim was not an unreasonable application of clearly established federal

law.

       AFFIRMED.




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