
    Joseph I. MALVIA, Petitioner-Appellant, v. C.A. TERHUNE, Director, the California Department of Corrections; et al., Respondents-Appellees.
    No. 00-56810.
    D.C. No. CV-99-01030-BTM.
    United States Court of Appeals, Ninth Circuit.
    Submitted June 11, 2001 .
    Decided June 25, 2001.
    
      Before O’SCANNLAIN, SILVERMAN and GOULD, Circuit Judges.
    
      
       The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Malvia's request for oral argument is denied.
    
   MEMORANDUM

Joseph I. Malvia appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction for drawing or exhibiting a firearm in the presence of a motor vehicle occupant. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

We review de novo the district court’s denial of a habeas petition. Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir. 1999). Malvia contends that the trial court erred by failing to instruct the jury on the theory of self-defense under California Jury Instruction (“CALJIC”) 9.07.

Contrary to Malvia’s assertion, self-defense is an affirmative defense; the lack of self-defense is not an element of the offense charged. See McKelvey v. United States, 260 U.S. 353, 356-57, 43 S.Ct. 132, 67 L.Ed. 301 (1922) (stating the rule that “an indictment ... founded on a general provision defining the elements of an offense ... need not negative the manner of an exception ... it is incumbent on one who relies on such exception to set it up and establish it.”); accord Echavarriar-Olarte v. Reno, 35 F.3d 395, 399 (9th Cir. 1994); In Re Andre R., 158 Cal.App.3d 336, 341-342, 204 Cal.Rptr. 723 (1984) (stating “[i]t is well established that where a statute first defines an offense in unconditional terms and then specifies an exception to its operation, the exception is an affirmative defense to be raised and proved by the defendant.”); see also Cal.Penal Code § 417.3.

Moreover, because the record reflects no basis for instructing the jury on self-defense, the trial court properly omitted the optional language of CALJIC 9.07 referring to self-defense. There being no error, the state court’s decision was neither contrary to nor an unreasonable application of clearly established federal law; the district court therefore properly denied Malvia’s habeas petition. 28 U.S.C. § 2254(d); Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.), cert, denied, 531 U.S. 944, 121 S.Ct. 340, 148 L.Ed.2d 274 (2000); see also Prantil v. California, 843 F.2d 314, 317-318 (9th Cir.1988) (concluding that habeas relief is not warranted where an allegedly erroneous jury instruction did not violate due process).

AFFIRMED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
     