NOT FOR PUBLICATION OCT 27 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RAYMOND THOMAS PARHAM, No. 09-15282
Petitioner - Appellant, D.C. No. 2:06-cv-02624-GEB
KATHY MENDOZA-POWERS, Warden;
ATTORNEY GENERAL OF THE STATE
Respondents - Appellees.
Appeal from the United States District Court for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted October 19, 2010 **
Before: O'SCANNLAIN, TALLMAN, and BEA, Circuit Judges.
California state prisoner Raymond Thomas Parham appeals pro se from the
district court's judgment denying his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 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).
Parham contends that the trial court erred when it failed to instruct the jury
sua sponte on the lesser included offense of simple assault. After an independent
review of the record, we conclude that the state court's decision denying this claim
was not objectively unreasonable because the Supreme Court has not clearly
established that due process requires giving a lesser included offense in a non-
capital case, and the defendant did not request the instruction because it was not
part of his theory of defense. See Nunes v. Ramirez-Palmer, 485 F.3d 432
(9th Cir. 2007) (in the absence of a reasoned state court decision, this court must
perform an independent review of the record to determine whether a decision was
objectively unreasonable in light of relevant federal law); see also Bashor v. Risley,
730 F.2d 1228
, 1240 (9th Cir. 1984) (failure of a state court to instruct on a lesser
offense fails to present a federal constitutional question and will not be considered
in a federal habeas corpus proceeding, but a defendant is entitled to an instruction
on his theory of defense).
Parham also contends that there was constitutionally insufficient evidence to
support a conviction for assault with the intent to commit rape. The state court's
decision rejecting this claim was not contrary to, and did not involve an
unreasonable application of, clearly established federal law, as determined by the
Supreme Court of the United States. See 28 U.S.C. § 2254(d)(1); see also Jackson
[End Page 2 09-15282]
v. Virginia, 443 U.S. 307
, 324 (1979) (to prevail on an insufficiency of evidence
claim, a habeas petitioner must show that "no rational trier of fact could have
found proof of guilt beyond a reasonable doubt").
Finally, Parham contends that the trial court erred by imposing an upper
term sentence based on facts that were not proven to a jury beyond a reasonable
doubt. Although the state court's decision was contrary to clearly established
Supreme Court precedent, see Cunningham v. California, 549 U.S. 270
(2007), the error was harmless because we do not have a "grave doubt" as to
whether the jury would have found, beyond a reasonable doubt, that Parham had
numerous prior convictions apart from the one used to enhance his sentence by one
year. See Butler v. Curry, 528 F.3d 624
, 643, 648-49 (9th Cir. 2008) (this court
can only grant relief if there is a "grave doubt" as to whether a jury would have
found the relevant aggravating factors beyond a reasonable doubt).
To the extent that Parham raises new issues for the first time in his reply
brief, we decline to consider them. See Eberle v. City of Anaheim, 901 F.2d 814
818 (9th Cir. 1990).
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