Thomas

MEMORANDUM

California state prisoner Melvin James Thomas 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.

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 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (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 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (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…