                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                       FILED
                             FOR THE NINTH CIRCUIT                          JAN 07 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

 GREGORY LYNN COLBERT,                           No. 07-16839

               Petitioner - Appellant,           D.C. No. CV-02-05894-RMW

   v.
                                                 MEMORANDUM *
 MIKE KNOWLES,

               Respondent - Appellee.



                     Appeal from the United States District Court
                       for the Northern District of California
                     Ronald M. Whyte, District Judge, Presiding

                           Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        California state prisoner Gregory Lynn Colbert appeals from the district

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

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

          *
             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).

AH/Research
       Colbert contends that the jury instructions given by the court, CALJIC 2.50

and CALJIC 2.50.1, impermissibly lowered the prosecution’s burden of proof and

violated his rights to due process and a fair trial. Because there is no reasonable

likelihood that the jury applied the wrong burden of proof, Colbert is not entitled to

habeas relief. See Mendez v. Knowles, 556 F.3d 757, 767-70 (9th Cir. 2009).

       Colbert’s motion to expand the certificate of appealability 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.




AH/Research                                                                     07-16839
