FILED
NOT FOR PUBLICATION DEC 22 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT C. CERVANTEZ, No. 06-56352
Petitioner - Appellant, D.C. No. CV-04-00625-SGL
v.
MEMORANDUM *
C. K. PLILER,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted December 9, 2009
Pasadena, California
Before: KOZINSKI, Chief Judge, TROTT and WARDLAW, Circuit Judges.
Appellant Cervantez appeals the district court’s denial of his petition for a
writ of habeas corpus, alleging two errors.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
First, in connection with the lesser included offense of manslaughter, he
asserts that the state trial court erred in failing to instruct the jury that the State bore
the burden of disproving “heat of passion” beyond a reasonable doubt. This claim
fails because the failure of a state court to instruct on lesser included offenses does
not present a federal constitutional question cognizable on federal habeas review.
Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). Also, the California Court of
Appeal held that the factual record was utterly devoid of any evidence that would
have supported a finding of “heat of passion.” This determination is well
supported by the record. Accordingly, the Court of Appeal correctly concluded
pursuant to Neder v. United States, 527 U.S. 1 (1999), that any instructional
omission was harmless under Chapman v. California, 386 U.S. 18 (1967).
Likewise, the omission of the instruction had no substantial and injurious effect or
influence on the jury. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).
Second, Cervantez argues that the removal by the state trial court of a sitting
juror who indicated that she would not follow the court’s orders deprived him of
his right to due process guaranteed by the Sixth and Fourteenth Amendments.
The Court of Appeal found appropriate factual and legal cause for the trial
court’s decision. We agree. Moreover, there do not yet exist established rules
from the Supreme Court governing the handling of a recalcitrant juror.
2
AFFIRMED.
3