Thomas v. Sisto , 376 F. App'x 667 ( 2010 )

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NOT FOR PUBLICATION APR 15 2010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