                                                                           FILED
                             NOT FOR PUBLICATION                            APR 15 2010

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




                             FOR THE NINTH CIRCUIT



MELVIN JAMES THOMAS,                              No. 07-56085

               Petitioner - Appellant,            D.C. No. 2:06-cv-04307-ER

  v.
                                                  MEMORANDUM *
D. K. SISTO, Warden,

               Respondent - Appellee.



                     Appeal from the United States District Court
                        for the Central District of California
                     Edward Rafeedie, District Judge, Presiding

                               Submitted April 5, 2010 **


Before:        RYMER, McKEOWN, and PAEZ, Circuit Judges.

       California state prisoner Melvin James Thomas appeals from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have


          *
             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).
jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

      Thomas contends that the trial court violated his due process rights by

declining to instruct the jury on the defense of unconsciousness. As a preliminary

matter, the State has waived its argument that Thomas’ claim is barred by Teague

v. Lane, 489 U.S. 288 (1989). See Jordan v. Ducharme, 983 F.2d 933, 936 (9th

Cir. 1993). Our independent review of the record, see Himes v. Thompson, 336

F.3d 848, 853 (9th Cir. 2003), indicates that the state courts’ rejection of Thomas’

due process claim was not objectively unreasonable. See 28 U.S.C. § 2254(d)(1);

see also Estelle v. McGuire, 502 U.S. 62, 72-73 (1991); Duckett v. Godinez,

67 F.3d 734, 743-44 (9th Cir. 1995).

      Finally, we construe Thomas’ additional arguments as a motion to expand

the certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999)

(per curiam).

      AFFIRMED.




                                          2                                     07-56085
