Unpublished Disposition, 902 F.2d 39 (9th Cir. 1990)

MEMORANDUM^** 

James John Lance, a California State prisoner, appeals pro se the district court's denial of his petition for habeas corpus relief under 28 U.S.C. § 2243. We remand for the district court to consider a claim of ineffective assistance of counsel during Thurman's sentencing, but otherwise affirm.

Lance was involved in an automobile accident with James Hodge on the Hollywood Freeway. Both parties pulled over to the side of the road and exited their vehicles. Hodge claimed that after he shoved Lance, Lance said, "now you are really going to get it," reached into his back pocket and took out a Derringer. Hodge was unarmed. Lance immediately shot Hodge two times from a distance of eight to ten feet. Hodge eventually sought aid, and was taken to a hospital.

Lance was charged with attempted murder, but the jury found him guilty of a lesser included offense of attempted voluntary manslaughter. Lance received a three-year sentence plus an additional three-year enhancement for infliction of great bodily injury pursuant to section 12022.7 of the California Penal Code.

Lance first challenges the characterization of attempted voluntary manslaughter as a lesser included offense of attempted murder. In People v. Van Ronk, 171 Cal. App. 3d 818, 217 Cal. Rptr. 581 (1985), the California Court of Appeals decided, adversely to the appellant's position, the exact issue Lance raises here. Regardless of that decision, however, the issue is one of state law which does not implicate any of the appellant's federal rights, and on habeas we do not reach it. See Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985), cert. denied, 478 U.S. 1021 (1986).

Lance also argues that the evidence was insufficient to prove he possessed the necessary intent. Based on the undisputed facts, a rational jury certainly could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); see Gordon v. Duran, No. 88-6046, slip op. at 1147 (February 5, 1990); Miller v. Virginia, 868 F.2d 1116 (9th Cir. 1989) (applying Jackson standard on review of state prisoner's habeas petition challenging sufficiency of the evidence). There was sufficient evidence to convict Lance.

Lance argues he was denied effective assistance of counsel at trial. Under Strickland v. Washington, 466 U.S. 668, 687 (1984), ineffective assistance of counsel does not rise to a constitutional violation unless it is shown that counsel made unprofessional errors, and but for these errors, it was reasonably probable that the defendant would have received a more favorable result. Lance's charges against his attorney's conduct at trial fail this test.

Lance's lawyer vigorously cross-examined the victim and the state's other witnesses. He presented three witnesses on behalf of Lance, and presented a vigorous closing argument. Based on the record, and Lance's complaints now, there is no basis to conclude that Lance's representation during the trial was not quite adequate.

For the first time on appeal Lance claims that the victim made inconsistent statements, misstated facts, and was highly belligerent. Although Lance cites to the California Evidence Code, his arguments raise sufficiency of the evidence grounds. The evidence was sufficient to convict Lance. See Jackson v. Virginia, supra.

Lance contends that his sentence was improperly enhanced under California law. However, this court has specifically held that sentence enhancement provisions involve questions of state sentencing law and are not subject to review on habeas. See Miller v. Vasquez, 868 F.2d 1116, 1119 (9th Cir. 1989); Middleton v. Cupp, 768 F.2d at 1085 (federal habeas relief "unavailable for alleged error in the interpretation or application of state law").

Notwithstanding our inability to review directly Lance's sentence on habeas review, Lance's allegations are broad enough to encompass a claim of ineffective assistance of counsel with regard to sentencing. The district court did not consider such a claim. It would appear to have some substance. Lance was convicted of attempted voluntary manslaughter and his sentence was enhanced pursuant to Penal Code Sec. 12022.7. This statute excepts from its application "murder or manslaughter or a violation of section 451 or 452." California case law holds that convictions for the crime of attempted voluntary manslaughter may not be subject to enhancement under section 12022.7. See People v. Courie, 155 Cal. App. 3d 415, 201 Cal. Rptr. 736, 737-38 (Cal.App.1984). We remand to the district court on this ground alone to determine whether Lance's counsel's failure to object to the enhancement of Lance's sentence rose to the level of Strickland error.

REMANDED.