                                                                             FILED
                           NOT FOR PUBLICATION                                DEC 12 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


TEKLEZGI GEBREZGIABHER,                         No. 09-17377

              Petitioner - Appellant,           D.C. No. 5:06-cv-07864-RMW

  v.
                                                MEMORANDUM*
MIKE C. KREMER,

              Respondent - Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
                Ronald M. Whyte, Senior District Judge, Presiding

                     Argued and Submitted December 3, 2012
                            San Francisco, California

Before: HAWKINS, TASHIMA, and MURGUIA, Circuit Judges.

       Petitioner Teklezgi Gebrezgiabher (“Gebrezgiabher”) appeals the district

court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his second

degree murder conviction. We affirm.




        *
         This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          Although the state trial court erred in this case by instructing the jury that

voluntary manslaughter requires intent to kill, see People v. Lasko, 999 P.2d 666,

670–72 (Cal. 2000) (voluntary manslaughter does not require intent to kill), the

question we ask on habeas review is whether that error was constitutional in nature,

Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010).1

      Constitutional error requires a showing that the flawed instruction “so infected

the entire trial that the resulting conviction violates due process.” Estelle v. McGuire,

502 U.S. 62, 72 (1991) (citation omitted) (internal quotation marks omitted). The

defective instruction “must be considered in the context of the instructions as a

whole.” Id. at 72–73 (citation omitted).

      Here, in addition to properly instructing the jury on second degree murder, the

judge instructed that “[t]o establish that a killing is murder and not manslaughter,” the

state had the burden of proving beyond a reasonable doubt that the killing was not

done in the heat of passion, upon a sudden quarrel, or in unreasonable self-defense.

      Assuming, as we must, that the jury followed the instructions it was given, Doe

v. Busby, 661 F.3d 1001, 1017 (9th Cir. 2011) (“A habeas court must presume that



      1
       Were we to find constitutional error, we would then determine whether, under
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), that error was prejudicial. Pulido,
629 F.3d at 1012. As we find no constitutional error, we do not reach the question of
prejudice.

                                            2
jurors follow the jury instructions.”) (citation omitted), the verdict establishes that the

jury necessarily found beyond a reasonable doubt that Gebrezgiabher did not act in

the heat of passion, upon a sudden quarrel, or in unreasonable self-defense. As a

result, the jury could not have convicted him of voluntary manslaughter even absent

the flawed instruction. The error, therefore, was not constitutional.

      AFFIRMED.




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