Fernando ZAVALA, Petitioner-Appellant, v. Terri GONZALEZ, Warden, Respondent-Appellee, 537 F. App'x 684

MEMORANDUM Fernando Zavala appeals from the district court’s denial of his federal habeas corpus petition. In his habeas petition, Zavala argued that the state trial court violated his Sixth and Fourteenth Amendment rights to due process and a fair trial by failing to instruct the jury on voluntary intoxication as a consideration relevant to the specific intent elements of the charged offense of criminal threats under California Penal Code § 422. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm. The government argues that Zavala has failed to exhaust his constitutional claims in state court.

Although the government is correct that Zavala’s claims were not fairly presented before the California courts because he raised only the issue of instructional error on state-law grounds, and did not indicate any independent federal constitutional basis for his claim, see Baldwin v. Reese, 541 U.S. 27, 30-32, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004); Castillo v. McFadden, 399 F.3d 993, 998-99 (9th Cir.2005), AEDPA requires a petitioner to exhaust only “remedies still available at the time of the federal petition,” Franklin v.

Johnson, 290 F.3d 1223, 1231 (9th Cir. 2002); see also 28 U.S.C. § 2254(b)(1)(A). “If a petitioner failed to present his claims in state court and can no longer raise them through any state procedure, state reme- dies are no longer available, and are thus exhausted.” Franklin, 290 F.3d at 1231; see also Slovik v. Yates, 556 F.3d 747, 751 n. 4 (9th Cir.2009). Here, Zavala cannot return to state court to raise his claims because they would be time-barred.

See In re Clark, 5 Cal.4th 750, 21 Cal.Rptr.2d 509, 855 P.2d 729, 760 (1993) (“[Ajbsent justification for the failure to present all known claims in a single, timely petition for writ of habeas corpus, successive and/or untimely petitions will be summarily denied.”); see also Walker v. Martin, — U.S. —, 131 S.Ct. 1120, 1128-30, 179 L.Ed.2d 62 (2011); cf. In re Robbins, 18 Cal.4th 770, 77 Cal.Rptr.2d 153, 959 P.2d 311, 317 (1998) (explaining that claims filed more than 90 days after the filing of the reply brief in direct appeal in capital cases are presumptively untimely).

Zavala’s claims are thus technically exhausted. See Franklin, 290 F.3d at 1231. Although such technically exhausted claims may also be procedurally defaulted, see Coleman v. Thompson, 501 U.S. 722, 732, 735 n. 1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991); Smith v. Baldwin, 510 F.3d 1127, 1139 (9th Cir. 2007) (en banc), the government did not raise the issue of procedural default before the district court and has thus forfeited the issue, see Franklin, 290 F.3d at 1229-31. As to the merits of Zavala’s constitutional claims, the government argues that the Teague retroactivity principle bars review. See Horn v.

Banks, 536 U.S. 266, 271-72, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002) (per curiam). We conclude that Teague does not bar review. Zavala’s claims would not require an application of a “new rule” under Ninth Circuit precedent. See Butler v. Curry, 528 F.3d 624, 635 n. 10 (9th Cir. 2008). We have previously held that a state court’s “failure to correctly instruct the jury on [a] defense may deprive the defendant of his due process right to present a defense.” Bradley v. Duncan, 315 F.3d 1091, 1099 (9th Cir.2002); see also Conde v. Henry, 198 F.3d 734, 739-40 (9th Cir.2000).

However, even if we were to conclude that there was constitutional error in this case, any potential error was harmless. In conducting harmless error review, “we apply the Brecht test without regard for the state court’s harmlessness determination.” Merolillo v. Yates, 663 F.3d 444, 455 (9th Cir.2011); see also Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007). We conclude that, under Brecht, any error in failing to instruct the jury on voluntary intoxication in this case did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Zavala’s primary strategy at trial was not to assert a defense of voluntary intoxication, but rather to deny that he had ever threatened or assaulted Ozkan. Moreover, voluntary intoxication is not an affirmative defense in California, see People v. Horton, 11 Cal.4th 1068, 47 Cal.Rptr.2d 516, 906 P.2d 478, 509 (1995); People v.

Reyes, 52 Cal.App.4th 975, 982-83, 61 Cal.Rptr.2d 39 (1997), and to the extent that it was relevant to the specific intent element of criminal threats under California Penal Code § 422, there was overwhelming evidence demonstrating that Zavala intended to threaten Ozkan and made the threat “with the specific intent that the statement ... be taken as a threat,” People v. Garrett, 30 Cal.App.4th 962, 966, 36 Cal.Rptr.2d 33 (1994) (emphasis omitted).

Zavala repeatedly threatened to kill Ozkan, pointed a gun at him, and fired several times. “[T]he guilty verdict actually rendered in [Zavala’s] trial was[, thus,] surely unattributable to the error.” Sullivan v. Louisiana, 508 U.S. 275, 279, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. . As we noted in Slovik, 556 F.3d at 751 n. 4, the standard of review that applies to claims that were not raised before the state court, but are technically exhausted, is unclear.

Compare, e.g., Franklin, 290 F.3d at 1233 (applying AEDPA's deferential standard), with, e.g., Chaker v. Crogan, 428 F.3d 1215, 1220-21 (9th Cir.2005) (applying de novo review). We need not resolve any tension between these cases because, even if there is constitutional error, any error is harmless under Brecht.