Fernando Zavala v. Terri Gonzalez

MEMORANDUM

Fernando Zavala appeals from the district court’s denial of his federal habeas corpus petition. In his habeas petition, Zavala argued that the state trial court violated his Sixth and Fourteenth Amendment rights to due process and a fair trial by failing to instruct the jury on voluntary intoxication as a consideration relevant to the specific intent elements of the charged offense of criminal threats under California Penal Code § 422. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.

The government argues that Zavala has failed to exhaust his constitutional claims in state court. Although the government is correct that Zavala’s claims were not fairly presented before the California courts because he raised only the issue of instructional error on state-law grounds, and did not indicate any independent federal constitutional basis for his claim, see Baldwin v. Reese, 541 U.S. 27, 30-32 , 124 S.Ct. 1347 , 158 L.Ed.2d 64 (2004); Castillo v. McFadden, 399 F.3d 993, 998-99 (9th Cir.2005), AEDPA requires a petitioner to exhaust only “remedies still available at the time of the federal petition,” Franklin v. Johnson, 290 F.3d 1223, 1231 (9th Cir. 2002);…