                                                                             FILED
                            NOT FOR PUBLICATION                               MAY 10 2011

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




                             FOR THE NINTH CIRCUIT



SENQUE SHAWARBI JEFFERSON,                        No. 09-17278

              Petitioner - Appellant,             D.C. No. 2:05-cv-00977-LKK-
                                                  DAD
  v.

SCOTT KERNAN,                                     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 April 15, 2011
                             San Francisco, California

Before: NOONAN and N.R. SMITH, Circuit Judges, and BLOCK, Senior District
Judge.**




       The district court’s denial of Jefferson’s petition for habeas corpus is

affirmed.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Frederic Block, Senior United States District Judge for
the Eastern District of New York, sitting by designation.
      In reviewing a petition for habeas corpus under AEDPA, this court is bound

by the state court’s interpretation of state law and errors of state law do not warrant

federal habeas relief unless they also violate federal law. Estelle v. McGuire, 502

U.S. 62, 67-68 (1991). Under AEDPA, we review this California case only to

determine if there was a violation of “clearly established Federal law, as

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),

and if so, whether it had a “substantial and injurious effect or influence in

determining the jury’s verdict,” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).

1.    The California Court of Appeal did not violate Jefferson’s federal

constitutional right to present a defense recognized by state law when it concluded

that medical evidence of Jefferson’s mental illness was not relevant to his state-law

defense of self-defense. Under California law, self defense includes an objective

element—what a reasonable person in similar circumstances would do. People v.

Jefferson,14 Cal. Rptr. 3d 473, 480-81 (Ct. App. 2004). However “[b]y definition,

a reasonable person is not one who hears voices due to severe mental illness.” Id.

at 481. An evidentiary rule precluding irrelevant evidence is neither “arbitrary”

nor “disproportionate to the purposes [it is] designed to serve.” Holmes v. South

Carolina, 547 U.S. 319, 325 (2006) (citations and internal quotation marks




                                           2
omitted).1   Jefferson did testify about his subjective belief that he needed to

defend himself based on the voices he heard; medical evidence of the same was not

necessary. For the same reasons, the trial court’s instruction that the jury could not

consider Jefferson’s mental state as a relevant circumstance was not an error of

state or federal law.

2.     The California Court of Appeal’s refusal to exercise its discretion to strike

Jefferson’s prior convictions does not contradict the governing law set forth in the

United States Supreme Court’s cases. Lockyer v. Andrade, 538 U.S. 63, 73 (2003);

cf. Ewing v. California, 538 U.S. 11, 29 (2003) (upholding trial court’s refusal to

exercise discretion to treat a “wobbler” as misdemeanor under three strikes). There

is no Supreme Court precedent involving materially indistinguishable facts in

which the Court arrived at a different result from that reached by the California

Court of Appeal. Lockyer, 538 U.S. at 73.

3.    Jefferson’s three-strikes sentence of 50 years to life is not contrary to or an

unreasonable application of clearly established federal law. Counsel conceded at

oral argument that the Supreme Court has never held that the mentally ill are not

subject to the three strikes law. Instead, it has affirmed that the laws are


      1
         We note that, in a different phase of the proceedings, the jury determined
that Jefferson was sane at the time he committed the three crimes for which he was
convicted.

                                           3
constitutional, except that a court may not impose a life sentence without parole for

non-violent offenses. Ewing, 538 U.S. at 22, 30-31. Because Jefferson’s multiple

convictions were for violent offenses, there is no violation of the Eighth

Amendment.

      AFFIRMED.




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