Bruce DIXON, Petitioner-Appellant, v. Cheryl K. PLILER, Warden, Respondent-Appellee, 137 F. App'x 104

MEMORANDUM California state prisoner Bruce Dixon appeals the district court’s order denying his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm. Dixon contends that the jury instructions given in his case failed to meaningfully distinguish between premeditated and unpremeditated attempted murder and thereby deprived him of due process.

We conclude that the California Court of Appeal’s decision rejecting this claim was not contrary to, and did not involve an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States. See Wisconsin v. Mitchell, 508 U.S. 476, 483, 113 S.Ct. 2194, 124 L.Ed.2d 436 (1993) (recognizing that federal courts “are bound by a state court’s construction of a state statute”); People v. Osband, 13 Cal.4th 622, 697, 55 Cal.Rptr.2d 26, 919 P.2d 640 (Cal.1996) (holding that with respect to premeditation and deliberation, “[t]he test is not time, but reflection.

Thoughts may follow each other with great rapidity and cold, calculated judgment may be arrived at quickly.”). Accordingly, the district court properly denied this claim. Dixon next contends that the consecutive life sentences he received were grossly disproportionate under the Eighth and Fourteenth Amendments. We disagree. This case does not present one of the “exceedingly rare” circumstances in which a sentence is unconstitutional because it is grossly disproportional to the petitioner’s most recent offense and criminal history. See Lockyer v. Andrade, 538 U.S. 63, 73, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.