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The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
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Appeal from the United States District Court for the Arizona, Earl H. Carroll, District Judge, Presiding.
Before FERNANDEZ, TASHIMA, and GRABER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Mario L. Duarte, an Arizona prisoner, appeals pro se the district court's denial of his 28 U.S.C. § 2254 habeas petition challenging his 1986 conviction for dangerous aggravated assault and dangerous manslaughter.
We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo a district court's dismissal of a habeas corpus petition, see Morales v. Calderon, 85 F.3d 1387, 1389 n. 6 (9th Cir.1996), and we affirm. Under the 28 U.S.C. § 2254(d), habeas relief can be granted only when the state court decision was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See Wilson v. Henry, No. 98-16301, slip op. 8483, 8489 (9th Cir. July 28, 1999).
Duarte first contends that his Sixth Amendment right to a fair trial was violated because the self-defense jury instruction impermissibly shifted the burden of proof to the defense. We disagree. The scope of federal habeas review concerning jury instructions is limited, see Estelle v. McGuire, 502 U.S. 62, 71-72 (1991), and viewing the jury instructions in their entirety, we conclude that Duarte's right to a fair trial was not violated, see id.. See also Cupp v. Naughten, 414 U.S. 141, 147 (1973); State v. Duarte, 798 P.2d 368, 370 (Ariz.1990) (en banc) (holding that the instructions as a whole correctly informed the jury of the burden of proof on the self-defense issue). Accordingly, the district court properly denied relief on this issue. See 28 U.S.C. § 2254(d).
Duarte also contends that his due process rights were violated because of an unconstitutional restriction of mitigating evidence during his resentencing. This contention is unpersuasive because, once again, to the extent such a claim is cognizable in federal habeas, see Estelle, 502 U.S. at 68-69 (reemphasizing that "it is not the province of a federal habeas court to reexamine state court determinations on state law questions"), there is no due process violation when the trial court does not consider mitigating factors during sentencing in a noncapital case, see United States v. LaFleur, 971 F.2d 200, 211-12 (9th Cir.1991). Moreover, the record demonstrates that trial counsel presented mitigating evidence at the sentencing hearing. Accordingly, the district court properly denied relief on this issue. See 28 U.S.C. § 2254(d).
Finally, Duarte contends that he was denied effective assistance of counsel at trial and throughout the course of his appeal and post-conviction relief proceedings. This contention too is unpersuasive.
The district court here properly determined that the presumption of correctness was applicable to the trial court's factual finding that Duarte was not advised by trial counsel to testify falsely. See 28 U.S.C. § 2254(e)(1). Duarte has failed to rebut the foregoing presumption by clear and convincing evidence and has further failed to demonstrate either deficient performance on the part of his various counsel at any point during his state proceedings or any resulting prejudice arising therefrom. See Washington v. Strickland, 466 U.S. 687-90 (1984). The district court properly denied relief and dismissed the section 2254 habeas petition accordingly. See 28 U.S.C. § 2254(d).
Duarte's renewed motion for appointment of counsel is denied as moot.