RICHARD LOUGHMILLER V. KATHLEEN DICKINSON, No. 11-17691 (9th Cir. 2013)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT APR 19 2013 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS RICHARD LEON LOUGHMILLER, Petitioner - Appellant, No. 11-17691 D.C. No. 2:09-cv-02094-JKS v. MEMORANDUM* KATHLEEN DICKINSON, Warden, Respondent - Appellee. Appeal from the United States District Court for the Eastern District of California James K. Singleton, Senior District Judge, Presiding Submitted April 17, 2013** San Francisco, California Before: SCHROEDER, THOMAS and SILVERMAN, Circuit Judges. Richard Loughmiller appeals the district court s order denying his petition for habeas corpus, which challenges Loughmiller s California convictions for attempted murder, first degree burglary, and discharging a firearm with gross * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). negligence. We have jurisdiction under 28 U.S.C. ยงยง 1291 and 2253(a). We affirm. Assuming, without deciding, that Loughmiller received ineffective assistance of counsel when his lawyer objected to a proposed jury instruction on the lesser-included offense of attempted voluntary manslaughter, Loughmiller did not suffer prejudice and is not entitled to relief. By convicting Loughmiller of attempted murder, the jury necessarily concluded that he intended to kill Arthur Weber. Thus, it is clear that the jury rejected Loughmiller s claim that he merely fired a warning shot to scare Weber. Moreover, as Loughmiller acknowledges, attempted voluntary manslaughter also requires proof of intent to kill. See, e.g., People v. Montes, 5 Cal. Rptr. 3d 800, 802-03 (Cal. Ct. App. 2003). But Loughmiller disclaimed any intent to kill Weber. Thus, had the jury accepted Loughmiller s theory that he fired a warning shot after Weber attacked him, it would have lacked sufficient evidence to convict him of the lesser-included offense of attempted voluntary manslaughter. Absent prejudice, Loughmiller is not entitled to relief. Strickland v. Washington, 466 U.S. 668, 687 (1984). AFFIRMED. 2
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