                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                           DEC 09 2010

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

JOSE DAVID ROMERO,                               No. 09-16776

              Petitioner - Appellant,            D.C. No. 1:06-cv-01866-JLS-JMA

  v.
                                                 MEMORANDUM *
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION; JAMES E. TILTON;
DERRAL G. ADAMS,

              Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Janis L. Sammartino, District Judge, Presiding

                    Argued and Submitted November 29, 2010
                            San Francisco, California

Before: SCHROEDER, THOMAS, and GOULD, Circuit Judges.

       Jose David Romero (“Romero”) appeals the district court’s denial of his 28

U.S.C. § 2254 petition for a writ of habeas corpus challenging his California state




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
court conviction for first degree felony murder. We have jurisdiction pursuant to

28 U.S.C. § 2253, and we affirm.

      Romero first claims that the trial court’s dismissal of the robbery count at the

close of evidence violated his due process right to a fair trial because it “gutted” his

defense that his lack of knowledge of the victim’s presence made him guilty of

theft and not felony murder. Romero does not cite, nor have we identified, any

United States Supreme Court authority clearly establishing a constitutional right to

the retention of a particular charge and corresponding jury instruction on a lesser

offense in a non-capital case. Cf. Beck v. Alabama, 447 U.S. 625, 627 (1980)

(holding that the death penalty may not be imposed when the jury was not

permitted to consider a verdict of guilt of a lesser included non-capital offense).

Further, the jury was instructed on the elements of felony murder, as well as the

underlying felonies of robbery, kidnapping, and carjacking, including the

requirement of specific intent, and therefore had to find that Romero knew of the

victim’s presence to convict him of murder. See Richardson v. Marsh, 481 U.S.

200, 206 (1987) (noting the assumption of the law that jurors follow their

instructions). The absence of the robbery charge did not deprive him of the

opportunity to present his defense of lack of knowledge. Nor did the absence of

the robbery charge render the trial fundamentally unfair. See Crane v. Kentucky,


                                           2
476 U.S. 683, 690 (1986) (“[T]he Constitution guarantees criminal defendants ‘a

meaningful opportunity to present a complete defense.’” (quoting California v.

Trombetta, 467 U.S. 479, 485 (1984))). The rejection of Romero’s claim by the

California Court of Appeal was not contrary to, nor an unreasonable application of,

clearly established federal law as determined by the Supreme Court. See 28 U.S.C.

§ 2254(d).

      Next, Romero argues that his trial counsel was ineffective, in several

different respects, in violation of his Sixth Amendment rights. The California

Court of Appeal stated the proper standard under Strickland v. Washington, 466

U.S. 668 (1984), and rejected Romero’s claims of ineffective assistance of counsel,

holding that trial counsel had plausible tactical reasons for his decisions.

Counsel’s lack of objection to alleged misconduct by the prosecutor1 in

characterizing the timeline of events was not unreasonable; counsel may have had

a strategy to accept the prosecutor’s reconstruction of the timeline, to focus the jury

on Romero’s central contention, for which the timeline was irrelevant. Similarly,

counsel was not ineffective merely because counsel did not object to hearsay


      1
       Romero concedes that he has waived any claim based on prosecutorial
misconduct. To the extent Romero asks the court nevertheless to review the claim
under an exception to procedural default, see Coleman v. Thompson, 501 U.S. 722,
749–50 (1991), no exception is warranted.


                                           3
statements introduced during Deputy Toscana’s testimony. Trial counsel

reasonably may have concluded that the testimony was favorable to the defense

case because it reinforced Romero’s version of events and showed that Romero

consistently denied involvement in the shooting.

      Counsel was not ineffective in opting not to request additional jury

instructions to support the defense theory. The California Court of Appeal’s

conclusion that the instructions were adequate as a matter of state law binds us.

See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A] state court’s interpretation

of state law . . . binds a federal court sitting in habeas corpus.”). Because the

instructions were proper under state law, and included sufficient reference to the

requirement of specific intent to permit a successful defense on Romero’s theory,

there was no constitutional ineffective assistance of counsel when counsel declined

to seek additional instructions.

      Finally, Romero contends that the trial court’s failure sua sponte to instruct

the jury on certain matters violated his right to a fair trial. The lack of additional

instructions on knowledge, specific intent, and theft did not so infect the outcome

of the trial that the resulting conviction violates due process. Cupp v. Naughten,

414 U.S. 141, 147 (1973); see also Estelle v. McGuire, 502 U.S. 62, 71–72 (1991).

The instructions on felony murder, robbery, kidnapping, and carjacking—all


                                            4
proper under state law—permitted the jury to acquit Romero based on the defense

theory of lack of knowledge. Romero has not met the “heavy” burden to show that

the omission of instructions was so prejudicial as to violate due process. See

Henderson v. Kibbe, 431 U.S. 145, 155 (1977).

      AFFIRMED.




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