Avila

MEMORANDUM *

Avila’s unexhausted claim in his habeas petition was meritless. Avila claimed that *696 the California trial court violated his federal constitutional rights by failing to instruct the jury that simple possession of a controlled substance is a lesser-included offense of “giving away” a controlled substance. Compare Cal. Health & Safety Code § 11850 (a) with id. § 11352(a). On direct appeal, the California Court of Appeal rejected Avila’s argument that possession is a lesser-included offense of “giving away.” See People v. Thomas, 42 Cal. App.4th 798 , 49 Cal.Rptr.2d 856, 859 (1996) (citations omitted). This state law determination is not reviewable in federal habe-as corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 67-68 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991). Moreover, the state trial court’s failure to instruct on a lesser-included offense in a non-capital case fails to present a federal constitutional question. See Solis v. Garcia, 219 F.3d 922, 928-29 (9th Cir.2000); Bashor v. Ris-ley, 730 F.2d 1228, 1240 (9th Cir.1984).

Because Avila’s unexhausted claim was meritless, the district court correctly refused to stay Avila’s habeas petition to permit Avila…