FILED
NOT FOR PUBLICATION NOV 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RONNIE WINN, No. 10-17163
Petitioner - Appellant, D.C. No. 2:03-cv-02347-JAM-
KJN
v.
ANTHONY A. LAMARQUE, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Argued and Submitted November 6, 2012
San Francisco, California
Before: SCHROEDER, KLEINFELD, and BERZON, Circuit Judges.
Ronnie Winn appeals the district court’s denial of his petition for a writ of
habeas corpus. He makes two ineffective assistance of counsel claims and two
claims regarding the trial court’s failure to give jury instructions. We affirm the
denial of Winn’s petition.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
I.
Winn claims that his trial counsel provided ineffective assistance by failing
to adequately investigate and present exculpatory evidence of the victim’s cause of
death. This claim was presented to the California Supreme Court in a habeas
petition that was denied without analysis. We therefore “perform an independent
review of the record to ascertain whether the state court decision was objectively
unreasonable.” Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006)
(internal quotations omitted). Our inquiry is “whether there is any reasonable
argument that counsel satisfied Strickland’s deferential standard.” Harrington v.
Richter, 131 S.Ct. 770, 788 (2011). We conclude that counsel satisfied Strickland,
because Winn has not shown that counsel’s failure to investigate and present
evidence regarding the victim’s cause of death was prejudicial. Strickland v.
Washington, 466 U.S. 668, 693-94 (1984).
Winn also claims that his trial counsel provided ineffective assistance by
failing to call three potential defense witnesses whose testimony would have been
exculpatory. Winn’s counsel investigated all three potential witnesses, and the
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California Court of Appeal determined that there were “insufficient grounds to
fault counsel’s tactical judgment,” that they would not advance his case. The
Court of Appeal did not act contrary to or unreasonably apply Strickland.
Strickland, 466 U.S. at 689 (“[T]he defendant must overcome the presumption that,
under the circumstances, the challenged action might be considered sound trial
strategy.”) (quotation omitted).
II.
Winn claims that the trial court violated his due process rights, including his
right to present a defense, by failing sua sponte to instruct the jury on third-party
culpability and by refusing to give Winn’s requested jury instructions on causation.
“On federal habeas, the issue is ‘whether the ailing instruction by itself so infected
the entire trial that the resulting conviction violates due process.’ The burden on
the habeas petitioner is especially heavy where, as here, the alleged error involves
the failure to give an instruction.” Clark v. Brown, 450 F.3d 898, 904 (9th Cir.
2006) (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)) (second quotation
omitted).
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The Court of Appeal held that it was unnecessary for the trial court to give
an instruction on third-party culpability, in part because the other instructions made
it sufficiently clear that the prosecution had to prove beyond a reasonable doubt
that Winn killed the victim. That holding was not violative of the Due Process
Clause. Estelle v. McGuire, 502 U.S. at 71-73.
The Court of Appeal also upheld the rejection of Winn’s requested
instructions on causation. The language of the instruction on the elements of the
crime was clumsy, but the rest of the instructions and the evidence and arguments
made the jury question reasonably clear. No juror was likely to have misread the
instructions to mean that Winn could be convicted of killing the victim if there was
a reasonable doubt that Winn’s blows caused the victim’s death. Whatever verbal
imperfection may have existed could not have, on this record, prejudiced Winn.
“Failure to give a jury instruction which might be proper as a matter of state law,
by itself, does not merit federal habeas relief.” Menendez v. Terhune, 422 F.3d
1012, 1029 (9th Cir. 2005) (quotation and alteration omitted). Instead, our
analysis is confined to due process. Estelle v. McGuire, 502 U.S. at 72. Winn was
not deprived of due process.
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AFFIRMED.
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