ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS; DENYING CERTIFICATE OF APPEALABILITY
LUCY H. KOH, District Judge.
Petitioner, a state prisoner proceeding pro se, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent was ordered to show cause why the petition should not be granted.1 Respondent has filed an answer. Although given an opportunity, petitioner has not filed a traverse. Having reviewed the briefs and the underlying record, the court concludes that petitioner is not entitled to relief, and DENIES the petition.
PROCEDURAL HISTORY
On April 18, 2011, petitioner pleaded guilty to possession of a firearm by a felon. On May 16, 2011, after a jury trial, petitioner was found guilty of second degree murder and shooting at an inhabited dwelling. The jury found true several enhancements. On June 24, 2011, the trial court sentenced petitioner to a term of 49 years and 8 months to life in state prison.
On April 30, 2013, the California Court of Appeal affirmed, but struck a one-year enhancement for a prior prison term. On July 10, 2013, the California Supreme Court denied review.
Petitioner filed the underlying federal habeas petition on July 28, 2014.
BACKGROUND
The following facts are taken from the Court of Appeal's opinion in People v. Edwards, No. A132814, 2013 WL 1809723 (Cal. App. April 30, 2013).
Darius Fields met with police and told Sergeant James Morris that on March 19, 2006, Fields saw a Hispanic male bump into petitioner near the convenience store. Id. at *2. Petitioner felt disrespected. Id. Petitioner and other "youngsters" started a fight with the Hispanic male and beat him up. Id. A few minutes later, a Hispanic male and a Hispanic female fired two or three shots in the general direction of the store. Id. Once police arrived at the scene, everyone had cleared the area. Id. Petitioner told Fields that "everyone of them in the building'll get the business." Id.
Later that same day, Fields saw petitioner walk toward an apartment complex carrying an assault weapon. Id. Fields told Sergeant Morris that petitioner pointed the gun toward [apartment 13, where the victim was killed.] Id. Fields estimated that petitioner fired his weapon over 20 times, and then petitioner fled the scene. Id. Fields thought that petitioner believed the victim was affiliated with the Hispanic individuals from the altercation earlier in the day.
Another witness, Jermaine Hackett, told Sergent Morris that he also witnessed the shooting on March 19, 2006. Id. Hackett said that he was sitting in his car in front of the apartment complex when he saw petitioner cross the street with an assault rifle. Id. Hackett told petitioner "Don't do it" because there were a lot of children outside. Id. Petitioner approached apartment 13, knocked on the door, and then stepped back and knelt down. Id. When the door began to open, petitioner began to fire. Id. Hackett thought that petitioner believed the victim was affiliated with the altercation earlier in the day.
Witness Darnell Carter testified that he also saw petitioner approaching the apartment complex on March 19, 2006, around 6:00 p.m., carrying an assault rifle. Id. Carter watched petitioner knock on the front door of an apartment, and when someone answered the door, petitioner began shooting around 20-30 shots. Id.
Karen Chavez lived in apartment 13. Around 6:19 p.m. on March 19, 2006, Chavez approached Officer Robert Rodriquez and told him that her boyfriend, the victim, had been shot. Id. at *1. By the time Officer Rodriquez entered apartment 13, the victim had no pulse. Id. The victim had died from a gunshot wound to the head and neck. Id.
Petitioner testified that he retrieved his weapon with the intent to "shoot [the victim's] house up." Id. at *3. When he arrived at apartment 13, petitioner knocked on the door. Id. Before anyone answered, petitioner decided that he was going to shoot up the house. Id. Petitioner states that he walked across the parking lot, made the kids move, and started to shoot. Id. Petitioner told officers that he did not know the victim was in the apartment and did not intend to kill him. Id.
STANDARD OF REVIEW
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, the application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the United States Supreme Court as of the time of the state court decision. Id. at 412. Clearly established federal law is defined as "the governing legal principle or principles set forth by the [United States] Supreme Court." Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
DISCUSSION
Petitioner's sole claim in his federal habeas petition is that the trial court erred in failing to sua sponte instruct the jury on an alternative, lesser included voluntary manslaughter theory. The trial court had instructed the jury that an intentional killing is reduced to voluntary manslaughter if the killing was the result of heat of passion or a sudden quarrel. However, petitioner argues that the trial court should have instructed the jury on the alternative theory that it could find petitioner guilty of voluntary manslaughter if it found that the killing was an unintentional killing without malice during a felonious assault.
The California Court of Appeal considered this claim and rejected it. Edwards, 2013 WL 1809723, at *3-5. The state appellate court recognized that, at the time of petitioner's trial, the California Supreme Court in People v. Garcia, 162 Cal.App.4th 18, 31 (2008), suggested that "an unlawful killing during the commission of an inherently dangerous felony, even if unintentional, is at least voluntary manslaughter." Edwards, 2013 WL 1809723, at *4 (quoting Garcia, 162 Cal. App. 4th at 31). The state appellate court recognized that the Garcia dictum was not a "general principle of law" that would have necessitated a sua sponte instruction because the state of the law was still undeveloped. Id. In addition, the state appellate court concluded that the evidence produced at trial was insufficient to support a finding that petitioner acted without implied malice. Id. at *4-5. As a result, the California Court of Appeal denied petitioner's claim and affirmed the judgment.
Subsequently, the California Supreme Court expressly disapproved Garcia in People v. Bryant, 56 Cal.4th 959, 968 (2013). "A defendant who has killed without malice in the commission of an inherently dangerous assaultive felony must have killed without either an intent to kill or a conscious disregard for life. Such a killing cannot be voluntary manslaughter because voluntary manslaughter requires either an intent to kill or a conscious disregard for life. To the extent that [Garcia] suggested otherwise, it is now disapproved." Id. Thus, the alternative voluntary manslaughter theory suggested by Garcia and urged by plaintiff is contrary to state law. Because federal courts are bound by a state's resolution of issues of state law, petitioner is not entitled to federal habeas relief. See Solis v. Garcia, 219 F.3d 922, 927 (9th Cir. 2000) ("We accept, as we must, the California Supreme Court's identification of the elements of the offense.").
In addition, federal courts may grant habeas relief only if a state court decision is contrary to, or an unreasonable application of clearly established federal law as determined by the United States Supreme Court. See 28 U.S.C. § 2254(d)(1). There is no clearly established federal law regarding the failure of a state court to instruct on a lesser-included offense in a non-capital case.2 See Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000) ("the failure of a state court to instruct on a lesser offense [in a non-capital case] fails to present a federal constitutional question and will not be considered in a federal habeas corpus proceeding") (quoting Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984)); Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998) ("Under the law of this circuit, the failure of a state trial court to instruct on lesser included offenses in a non-capital case does not present a federal constitutional question."). Thus, because the United States Supreme Court has not addressed the question presented in the petition, the state court's rejection of petitioner's claim was not contrary to, or an unreasonable application of, clearly established United States Supreme Court law.
CONCLUSION
The petition for writ of habeas corpus is DENIED.
The federal rules governing habeas cases brought by state prisoners require a district court that denies a habeas petition to grant or deny a certificate of appealability ("COA") in its ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254. Petitioner has not shown "that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Accordingly, a COA is DENIED.
The clerk is instructed to enter judgment in favor of respondent, terminate all pending motions, and close the file.
IT IS SO ORDERED.
