Mariscal

MEMORANDUM ***

Appellant Jimmy Vincent Mariscal, who was convicted by a jury of second-degree murder, appeals from the district court’s denial of his petition for writ of habeas corpus under 28 U.S.C. § 2254 . We affirm.

The challenged jury instruction, CALJIC 5.17, accurately stated California law as determined by the California Supreme Court in In re Christian S., 7 Cal.4th 768 , 773 n. 1, 30 Cal.Rptr.2d 33 , 872 P.2d 574 (1994). Nothing in the California Supreme Court’s decision supports Appellant’s contention that a defendant who initiated a physical assault, but subjectively believed that the victim was the aggressor, may claim imperfect self-defense.

State courts “are the ultimate expositors of state law,” and federal courts are bound by their constructions except in “extreme circumstances,” such as where a state court’s interpretation of state law appears to be an “obvious subterfuge to *140 evade consideration of a federal issue.” Mullaney v. Wilbur, 421 U.S. 684, 691 , 95 S.Ct. 1881 , 44 L.Ed.2d 508 (1975). There was no “obvious subterfuge” here. It is for the California courts to determine the scope of imperfect self-defense and the circumstances where malice…