Anthony Tony Harris, Petitioner-appellant, v. Samuel Lewis, Attorney General of the State of Arizona,respondents-appellees, 892 F.2d 1046 (9th Cir. 1989)

MEMORANDUM^** 

Harris was convicted of the crime of first degree burglary (burglary while armed with a deadly weapon). He claims that he stole the weapon and removed it from the residence along with other items of property, therefore the weapon was "loot" and he was not "armed" within the Arizona first-degree burglary statute. For that reason he contends that the trial court's failure to instruct on the meaning of "armed" was a fundamental error which violated his right to due process under the Fourteenth Amendment.

A petitioner challenging the correctness of jury instructions is not entitled to federal habeas corpus relief unless "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 147 (1973). In determining the validity of jury instructions "a single instruction to a jury must be viewed in the context of the overall charge." Id. at 146.

The trial court properly instructed on first and second degree burglary, and defined "dangerous instrument" and "deadly weapon." Viewed in the context of the overall charge to the jury, the failure to define "armed" did not rise to the level of a federal due process violation.

AFFIRMED.