BRYON KOERING V. TERRI GONZALEZ, No. 10-55585 (9th Cir. 2013)
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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS APR 23 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT BYRON R. KOERING, Petitioner - Appellant, No. 10-55585 D.C. No. 5:09-cv-00374-SJO-DTB v. MEMORANDUM* TERRI GONZALEZ, Respondent - Appellee. Appeal from the United States District Court for the Central District of California S. James Otero, District Judge, Presiding Argued and Submitted March 5, 2013 Pasadena, California Before: GOODWIN, WARDLAW, and GOULD, Circuit Judges. Pursuant to a limited certificate of appealability,1 Bryon Koering challenges the district court s denial of his habeas corpus petition. We affirm. * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. 1 Koering s motion to expand the certificate of appealability to self-defense and defense-of-property issues is DENIED. 9th Cir. R. 22-1(e). No jurists of reason could disagree with the district court s resolution of those issues. MillerEl v. Cockrell, 537 U.S. 322, 327 (2003). Our habeas review is governed by the Antiterrorism and Effective Death Penalty Act ( AEDPA ). AEDPA provides that if a federal habeas petitioner is in custody pursuant to a state court judgment and the petitioner s claim . . . was adjudicated on the merits in state court proceedings,2 our review is deferential. 28 U.S.C. § 2254(d). We may grant the writ only if: (1) the state adjudication was contrary to, or involved an unreasonable application of clearly established federal law, as determined by the Supreme Court; or (2) the state adjudication was based on an unreasonable determination of the facts in light of the evidence presented. Id. §§ 2254(d)(1) (2). The California Court of Appeal s decision affirming the trial court s decision not to instruct on a lesser included offense does not satisfy either prong of § 2254(d). Koering was entitled to jury instructions regarding his theory of defense, and the trial court s instructions were consistent with his theory. See Mathews v. United States, 485 U.S. 58, 63 (1988); California v. Trombetta, 467 U.S. 479, 485 (1984); Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). 2 Where, as here, the state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits for AEDPA purposes. Johnson v. Williams, 133 S. Ct. 1088, 1096 (2013); Harrington v. Richter, 131 S. Ct. 770, 784 85 (2011). Although habeas petitioners may overcome the presumption in some circumstances, see Harrington, 131 S. Ct. at 785, Koering has not done so here. -2- Although Koering contends that the jury should have received instructions regarding brandishing a firearm, see Cal. Penal Code § 417, he did not rely on a brandishing theory of defense, and nothing in the record shows that he even sought such an instruction. Koering then argues that the jury should have received a brandishing-afirearm instruction because brandishing is a lesser included offense of assault with a firearm. Id. § 245(a)(2). This argument runs counter to California authority holding that section 417 brandishing is not a lesser included offense of section 245 assault. See People v. Steele, 99 Cal. Rptr. 2d 458, 462 65 (Ct. App. 2000); People v. Escarcega, 117 Cal. Rptr. 595, 599 600 (Ct. App. 1974). But even assuming arguendo that brandishing were a lesser included offense of assault, 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. Windham v. Merkle, 163 F.3d 1092, 1106 (9th Cir. 1998); Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984). AFFIRMED. -3-
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