Court of Appeals for the Ninth Circuit October 3, 2007, No. 06-55479 (Avila v. Kirkland)

MEMORANDUM *

Avila’s unexhausted claim in his habeas petition was meritless. Avila claimed that *696the 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).