FILED
NOT FOR PUBLICATION JAN 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SAMUEL ESPINOZA, No. 07-55121
Petitioner - Appellant, D.C. No. CV-05-02724-GPS
v.
MEMORANDUM *
SCOTT KERNAN,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Argued and Submitted January 11, 2010
Pasadena, California
Before: GOODWIN, CANBY and O’SCANNLAIN, Circuit Judges.
Samuel Espinoza appeals the denial of his habeas corpus petition
challenging his state conviction for second-degree murder. This court granted a
certificate of appealability limited to two issues: (1) whether Espinoza’s due
process rights were violated when the trial court misadvised the jury regarding the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
elements of voluntary manslaughter, and (2) whether there was insufficient
evidence to convict him of second-degree murder. 28 U.S.C. § 2253(c)(3). Both
issues concern state law and were thoroughly analyzed and decided by the
California Court of Appeal with review denied by the California Supreme Court.
Because state-court factual determinations “are presumed correct absent
clear and convincing evidence to the contrary . . . a decision adjudicated on the
merits in state court and based on a factual determination will not be overturned on
factual grounds unless objectively unreasonable in light of the evidence presented
in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)
(citations omitted). The district court determined that Espinoza was not entitled to
federal habeas corpus relief because the state trial court’s instructional error was
not prejudicial to him. The trial evidence showed that it was reasonable for the
jury to conclude that Espinoza was not acting in self defense, defense of his
brother, or heat of passion under state law but that his actions showed an intent to
kill, qualifying for second-degree murder. The instructional error did not have a
“substantial and injurious effect or influence in determining the jury’s verdict” and
does not constitute a due process violation requiring reversal. Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (citation and internal quotation marks
omitted).
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The sufficiency of the evidence to support Espinoza’s second-degree murder
conviction survives review if “after viewing the evidence in the light most
favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,
443 U.S. 307, 319 (1979). The return of Espinoza and his brother to the residence
of the victim, Alex Perez, with loaded guns to redress disrespectful conduct
between rival gang associates showed them to be aggressors and evidenced an
intent to use deadly force. A rational juror could find that Espinoza did not act in
the heat of passion or in self defense or defense of his brother when he shot and
killed Perez. Espinoza has not proved that the state court’s application of the
Jackson standard was “objectively unreasonable.” Juan H. v Allen, 408 F.3d 1262,
1275 n.13 (9th Cir. 2005) (citation and internal quotation marks omitted).
AFFIRMED.
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