JUDGMENT

Pursuant to the Order Accepting and Adopting the Report and Recommendation of the United States Magistrate Judge, and dismissing the Petition for Writ of Habeas Corpus (“Petition”) with prejudice,

IT IS ADJUDGED that the Petition is dismissed with prejudice.

ORDER (1) ACCEPTING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND (2) DISMISSING THE PETITION FOR WRIT OF HABEAS CORPUS

Pursuant to 28 U.S.C. § 636 , the Court has made a de novo review of the Petition for Writ of Habeas Corpus (“Petition”), Respondent’s Answer, Petitioner’s Traverse, all of the records herein and the Report and Recommendation of the United States Magistrate Judge (“Report”).

IT IS ORDERED that: (1) the Court accepts and adopts the Report and Recommendation, and (2) Judgment be entered dismissing the Petition with prejudice.

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

This Report and Recommendation is submitted to the Honorable John F. Walter, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

INTRODUCTION

Petitioner, a California state prisoner proceeding pro se, filed a “Petition for Writ of Habeas Corpus by a Person in State Custody (“Petition”),” pursuant to 28 U.S.C. § 2254 , on February 12, 2008. Respondent filed an Answer and Notice of Lodging (“Answer”) on April 29, 2008. Petitioner filed a Traverse (“Traverse”) on May 21, 2008.

The matter has been deemed submitted and is ready for decision. Having reviewed the allegations of the Petition and the matters set forth in the record, the Answer and the Traverse, it is recommended that the Petition be dismissed with prejudice.

PRIOR PROCEEDINGS

Petitioner was convicted by a Los Ange-les County Superior Court jury of two counts of spousal rape, pursuant to California Penal Code (“PC”) § 262(a)(1). On September 21, 2006, Petitioner was sentenced to six years in state prison. (Lodged Document [“Doc.”] 1, 99-103.) The California Court of Appeal affirmed his conviction in full. (Lodged Document 1 at 104; Lodged Doc. 6.) Petitioner’s Petition for Review in the California Supreme Court was summarily denied on January 30, 2008. (Lodged Docs. 7 and 8.)

FACTUAL SUMMARY

As found by the California Court of Appeal on direct review, the following facts support Petitioner’s conviction:

(Lodged Doc. 6 at 2-4.)

PETITIONER’S CONTENTION

Petitioner contends that error was committed because the trial court denied his request for a Mayberry instruction and a properly instructed jury would not have voted to convict. (Petition at 3-4).

DISCUSSION

I

STANDARD OF REVIEW

A. The AEDPA.

The Anti-Terrorism and Effective Death Penalty Act (“AEDPA”) applies to all federal petitions filed after AEDPA’s effective date of April 24, 1996. Woodford v. Garceau, 538 U.S. 202, 210 , 123 S.Ct. 1398 , 155 L.Ed.2d 363 (2003); Rios v. Rocha, 299 F.3d 796 , 799 n. 4 (9th Cir.2002); Fuller v. Roe, 182 F.3d 699, 702 (9th Cir.1999) (per curiam). As explained by the Supreme Court, the AEDPA “places a new constraint on the power of a federal habeas court to grant a state prisoner’s application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court.” Williams v. Taylor, 529 U.S. 362, 411 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000).

Under the AEDPA, a federal court may not grant a writ of habeas corpus on behalf of a person in state custody “with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim (1) resulted in a decision that 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.” 28 U.S.C. § 2254 (d).

Section “2254(d)(l)’s ‘contrary to’ and ‘unreasonable application’ clauses have independent meaning.” Bell v. Cone, 535 U.S. 685, 694 , 122 S.Ct. 1843 , 152 L.Ed.2d 914 (2002). The U.S. Supreme Court has explained that:

Williams, 529 U.S. at 412-13 , 120 S.Ct. 1495 ; see Weighall v. Middle, 215 F.3d 1058, 1061 (9th Cir.2000) (discussing Williams). “An unreasonable application of federal law is different from an incorrect application of federal law.” Williams, 529 U.S. at 410 , 120 S.Ct. 1495 . The AEDPA “authorizes federal-court intervention only when a state-court decision is objectively unreasonable.” Woodford v. Visciotti 537 U.S. 19, 25 , 123 S.Ct. 357 , 154 L.Ed.2d 279 (2002) (per curiam) reh’g denied, 537 U.S. 1149 , 123 S.Ct. 957 , 154 L.Ed.2d 855 ; accord Mitchell v. Esparza, 540 U.S. 12, 18 , 124 S.Ct. 7 , 157 L.Ed.2d 263 (2003).

"While Supreme Court precedent is the only authority that is controlling under the AEDPA, this Court may “look to Ninth Circuit case law as persuasive authority for purposes of determining whether a particular state court decision is an unreasonable application of Supreme Court law.” Vlasak v. Superior Court of California ex rel. County of Los Angeles, 329 F.3d 683, 687 (9th Cir.2003) (quoting Luna v. Cambra, 306 F.3d 954, 960 (9th Cir.) (internal quotation marks and citation omitted), amended by 311 F.3d 928 (9th Cir.2002)).

Further, the AEDPA provides that state court findings of fact are presumed to be correct unless Petitioner rebuts that presumption by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1).

Finally, the AEDPA “does not require a federal habeas court to adopt any one methodology in deciding the only question that matters under § 2254(d)(1)— whether a state court decision is contrary to, or involved an unreasonable application of, clearly established federal law.” Lockyer v. Andrade, 538 U.S. 63, 71 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003).

B. Application Of The AEDPA To The Present Case.

Petitioner raised his instructional error claim in the California Court of Appeal, which rejected that claim in a written opinion. (Lodged Doc. 6.) The California Supreme Court rejected the same claim on the merits without explanation or citation. (Lodged Does. 7 and 8.) Nevertheless, “[w]here there has been one reasoned state judgment rejecting a federal claim, [federal courts are to presume] later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.” Ylst v. Nunnemaker, 501 U.S. 797, 803 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991). Thus, with respect to this claim, this Court will consider the reasoning of the California Court of Appeal to determine whether the California Supreme Court’s decision is contrary to, or an unreasonable application of, federal law.

II

PETITIONER IS NOT ENTITLED TO FEDERAL HABEAS RELIEF ON HIS CLAIM THAT THE TRIAL COURT’S FAILURE TO INSTRUCT THE JURY ON AN AFFIRMATIVE DEFENSE CONSTITUTED REVERSIBLE ERROR

Petitioner alleges that the trial court erroneously refused to give the defense’s requested instruction on the affirmative defense of reasonable good faith belief as articulated in People v. Mayberry, 15 Cal.3d 143 , 125 Cal.Rptr. 745 , 542 P.2d 1337 (1975). That instruction was embodied in CALJIC No. 10.65, which provided in relevant as follows:

(Answer at 11.)

As an initial matter, Respondent contends that Petitioner’s claim is barred by Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989). (Answer at 7-10.) The United States Supreme Court has instructed that when a Teague claim has been “properly raised by the state,” a federal habeas court must first determine whether a Teague bar exists before it may proceed to the merits of the petitioner’s substantive claims. Horn v. Banks, 536 U.S. 266, 271-72 , 122 S.Ct. 2147 , 153 L.Ed.2d 301 (2002); see also Leavitt v. Arave, 383 F.3d 809, 816 (9th Cir.2004). Although a Teague claim that is not argued, or made only “in passing,” need not be addressed, Arredondo v. Ortiz, 365 F.3d 778, 781-82 (9th Cir.2004), this Court finds that Respondent has sufficiently presented its Teague argument here. Furthermore, for the following reasons this Court agrees that Teague bars Petitioner’s claim.

The Teague rule is a “nonretroactivity principle” that “prevents a federal court from granting habeas corpus relief to a state prisoner based on a rule announced after his conviction and sentence became final.” Caspari v. Bohlen, 510 U.S. 383, 389 , 114 S.Ct. 948 , 127 L.Ed.2d 236 (1994). Under Teague , a “new rule” is one which “breaks new ground or imposes a new obligation on the states or the federal government,” and in which “the result was not dictated by precedent existing at the time the defendant’s conviction became final.” Teague, 489 U.S. at 301 , 109 S.Ct. 1060 .

The “rule” need not already have been announced by the United States Supreme Court. Where a habeas claim would require the announcement of a new rule, Teague applies. See Saffle v. Parks, 494 U.S. 484, 487-88 , 110 S.Ct. 1257 , 108 L.Ed.2d 415 (1990) (“As [the petitioner] is before us on collateral review, we must first determine whether the relief sought would create a new rule [under Teague ]”).

Here, Respondent contends that Petitioner is attempting to advance a new procedural rule, namely, that a state criminal defendant has a constitutional right to an affirmative defense on reasonable good faith belief in a spousal rape case. The Supreme Court’s holding in Gilmore v. Taylor, 508 U.S. 333 , 113 S.Ct. 2112 , 124 L.Ed.2d 306 (1993) effectively defeats the contention that Petitioner’s constitutional rights were violated by the failure to give the instruction. In that case, the petitioner was charged with murder, but contended at trial that he was only guilty of voluntary manslaughter. Petitioner contended that the challenged instructions prevented the jury from considering evidence of his affirmative defense. While the Supreme Court conceded that these instructions “created a risk that the jury would fail to consider evidence that related to an affirmative defense ...” (Id. at 343, 113 S.Ct. 2112 ), the Court held that a constitutional violation did not occur. Contrary to Petitioner’s argument that the jury instructions given interfered with his fundamental right to present a defense, the Court specifically identified constitutional guarantees as applying to a meaningful opportunity to present a complete defense, and, as related to that, the exclusion of evidence. Referring to its prior decisions which had found that constitutional principles were implicated in these circumstances, the Supreme Court noted that,

(Id. at 343-344, 113 S.Ct. 2112 .)

Analogously, a state criminal defendant does not have the constitutional right to affirmative defense instructions on lesser included offenses. Although this right has been recognized in capital cases, Beck v. Alabama, 447 U.S. 625, 638 , 100 S.Ct. 2382 , 65 L.Ed.2d 392 (1980), the United States Supreme Court has never extended the right to criminal defendants in non-capital cases. See Solis v. Garcia, 219 F.3d 922, 928-29 (9th Cir.2000). Indeed, the Ninth Circuit has previously held that this type of claim is barred by Teague’s non-retroactivity principle. See Solis, 219 F.3d at 929 (holding that Teague “barred this Court from changing the law regarding failure to instruct errors in the context of a habeas petition”) (citing Turner v. Marshall, 63 F.3d 807, 819 (9th Cir.1995), overruled on other grounds by Tolbert v. Page, 182 F.3d 677 (9th Cir.1999) (en banc)).

Even assuming that Teague does not bar Petitioner’s claim, the failure of a state trial court to instruct on affirmative defense instructions in a non-capital case does not present a federal constitutional question and, therefore, Petitioner’s claim is not cognizable on federal habeas review. See Solis, 219 F.3d at 929 (citing Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir.1998)); Chaidez v. Knowles, 258 F.Supp.2d 1069, 1095-96 (N.D.Cal.2003).

Finally, even construing Petitioner’s claim more broadly as alleging that the trial court improperly denied him the right to present the defense theory of the case, see Solis, 219 F.3d at 929 (noting that “defendant’s right to adequate jury instructions on his or her theory of the case might, in some cases, constitute an exception to the general rule”), the claim does not warrant federal habeas relief.

Generally, “ ‘federal habeas corpus relief does not lie for errors of state law.’ ” Estelle v. McGuire, 502 U.S. 62, 67 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 , 110 S.Ct. 3092 , 111 L.Ed.2d 606 (1990)). To obtain federal collateral relief for an error in a jury charge, the petitioner must show that the instructional error so infected the entire trial that the resulting conviction violated due process. Id. at 72, 112 S.Ct. 475 . The error must have had “substantial and injurious effect or influence in determining the jury’s verdict.” California v. Roy, 519 U.S. 2, 4-6 , 117 S.Ct. 337 , 136 L.Ed.2d 266 (1996) (citation omitted); O’Neal v. McAninch, 513 U.S. 432, 436 , 115 S.Ct. 992 , 130 L.Ed.2d 947 (1995) (citation omitted); Brecht v. Abrahamson, 507 U.S. 619, 637-38 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993) (citation omitted). The jury instructions must be considered as a whole and in the context of the trial record. Estelle, 502 U.S. at 72 , 112 S.Ct. 475 . An omission or an incomplete jury instruction is less likely to be prejudicial than a misstatement of the law. Henderson v. Kibbe, 431 U.S. 145, 155 , 97 S.Ct. 1730 , 52 L.Ed.2d 203 (1977). Thus, a habeas petitioner whose claim involves the failure to give a particular instruction bears an “especially heavy” burden. Id.

Petitioner has not met his burden here. First, the trial court did not err as a matter of state law in declining to give the requested instruction. The California Court of Appeal addressed this issue of state law in the following portion of its Opinion:

(Lodged Doc. 6 at 4-7.)

While Petitioner vigorously contends that the stare of the evidence was sufficient at trial to merit giving the requested instruction, this Court is bound by the limits of AEDPA, and under that standard, cannot conclude that the state court decision was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding, pursuant to 28 U.S.C. § 2254 (d). Plainly put, the Court agrees that there was no substantial evidence as required by state law that Petitioner possessed a reasonable but mistaken belief that the victim consented to the sexual act. Absent substantial evidence in the record of equivocal conduct which would have led Petitioner to reasonably and in good faith believe that there was consent when in fact it did not exist, the trial court was, pursuant to applicable state law, under no obligation to give the requested instruction. See People v. Williams, 4 Cal.4th 354 , 14 Cal.Rptr.2d 441 , 841 P.2d 961 (1992). Indeed, the evidence in the record did not establish that Petitioner honestly or in good faith believed that the victim consented to the sexual act. While Petitioner points out what he contends is equivocal conduct on the part of the victim, state law clearly establishes that any such conduct which was the product of force, violence, duress, menace, or fear of immediate unlawful bodily injury makes the defense unavailable. (See People v. Williams, 4 Cal.4th at 364 , 14 Cal.Rptr.2d 441 , 841 P.2d 961 ; see also CALJIC No. 10.65.) Indeed, the evidence is inconsistent with the existence of a subjective good faith belief in consent, and furthermore, does not establish objectively that Petitioner’s mistake regarding consent was reasonable under the circumstances, as is required by Mayberry . Thus, the Court finds no reason or basis under AEDPA to conclude that the state court’s determination of the facts was unreasonable.

For the foregoing reasons, the Court recommends that habeas relief be denied, and the Petition be dismissed with prejudice.

RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Judgment be entered denying the Petition and dismissing this action with prejudice.

DATED: June 11, 2008

. People v. Mayberry, 15 Cal.3d 143 , 125 Cal.Rptr. 745 , 542 P.2d 1337 (1975) . Estelle v. McGuire, 502 U.S. 62 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991).