Jaspar

MEMORANDUM *

Petitioner-Appellant Matthew Lee Jaspar appeals the district court’s order denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and affirm. Because the parties are familiar with the factual and procedural history, we do not repeat it here except to the extent necessary for our disposition.

I.

Relying on Gibson v. Ortiz, 387 F.3d 812 (9th Cir.2004), Jaspar claims on appeal that the jury instructions violated his constitutional right to due process because they allowed the jury to find him guilty of the charged offense by facts found only by a preponderance of the evidence. Due process requires that the state prove every element charged in a criminal offense beyond a reasonable doubt. Id. at 820 (eit *948 ing In re Winship, 397 U.S. 358, 364 , 90 S.Ct. 1068 , 25 L.Ed.2d 368 (1970)). However, Jaspar’s claim below was that due process requires some measure of proof beyond a preponderance of evidence to prove prior offenses, rather than that the jury instructions incorrectly permitted the jury to convict Jaspar of the charged offense by some measure of proof less than proof beyond a…