Unpublished Disposition, 872 F.2d 426 (9th Cir. 1989)

MEMORANDUM^** 

Appellant Fareed Hasan Ansari was convicted in Arizona trial court and sentenced to 21 years in prison for the armed robbery of a bank teller. After pursuing unsuccessful appeals in the Arizona Court of Appeals and the Arizona Supreme Court, appellant filed a petition for a writ of habeas corpus in the district court. Appellant now appeals the district court's dismissal of his habeas petition. We affirm.

Appellant first argues that he is entitled to relief because the Arizona trial court erred in refusing to give lesser included offense instructions on robbery and theft. This claim was properly dismissed by the district court. Appellant does not appear to argue that the Arizona trial court's error amounted to a violation of federal law; rather he merely cites Arizona cases which he argues were misapplied by the trial court. This question of Arizona law was presented to and ruled upon by the Arizona Court of Appeals, and we are not free to second guess the Arizona appellate court's rejection of appellant's claim. The Supreme Court has repeatedly stated that "state courts are the ultimate expositors of state law." Mullaney v. Wilbur, 421 U.S. 684, 691 (1975).

Appellant next argues that he is entitled to relief because there was insufficient evidence to support a jury determination that he was armed when he committed the robbery. The district court properly rejected this claim. First, there was testimony by one witness of the robbery that she saw what she believed was a gun in appellant's pocket. Next, appellant himself stated in the note he passed to the bank teller demanding money that he had a gun. Moreover, when the police stopped and patted down appellant, he volunteered that "the gun is in the glove box." Later, appellant confessed that he had committed the robbery with a gun in his pocket. Finally, a loaded gun was recovered in appellant's car at the time of his arrest. Viewing this evidence in a the light most favorable to the prosecution, as we must, see Jackson v. Virginia, 443 U.S. 307 (1979), we cannot say that no rational trier of fact could have found beyond a reasonable doubt that appellant had a gun when he committed the robbery.

Appellant's third claim relates to a witness' "one-man show-up identification" of him. This claim was not presented to the district court in appellant's habeas petition, and therefore cannot be presented to this court. Willard v. California, 812 F.2d 461, 465 (9th Cir. 1987).

Appellant's fourth and final claim is that the district court did not properly examine the record of his state court trial before dismissing appellant's habeas petition. The district court did, however, have before it extracts of the state record and transcripts of trial testimony, and we have no reason to believe that the district court did not consider these items in the record.

For the reasons discussed above, the district court's dismissal of appellant's habeas petition is AFFIRMED.