                                                                            FILED
                              NOT FOR PUBLICATION
                                                                            MAY 02 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


GEOFF EDWIN MURPHY,                    )      No. 17-17131
                                       )
      Petitioner-Appellant,            )      D.C. No. 1:16-cv-01934-LJO-EPG
                                       )
      v.                               )      MEMORANDUM*
                                       )
DEBBIE ASUNCION, Warden,               )
                                       )
      Respondent-Appellee.             )
                                       )

                   Appeal from the United States District Court
                      for the Eastern District of California
                Lawrence J. O’Neill, Chief District Judge, Presiding

                       Argued and Submitted April 17, 2019
                            San Francisco, California

Before: FERNANDEZ, BEA, and N.R. SMITH, Circuit Judges.

      Geoff Murphy, a California state prisoner, appeals the district court’s denial

of his petition for a writ of habeas corpus.1 See 28 U.S.C. § 2254. We affirm.

      (1) The Warden asserts that Murphy did not exhaust his state remedies on


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1
      The petition names Debbie Asuncion, Warden, California State Prison Los
Angeles County, as respondent (“the Warden”).
his claim of instructional error, and that, even if he did, this claim is procedurally

defaulted. We decline to reach either issue because we find that this appeal is

easily resolvable on its merits. See Franklin v. Johnson, 290 F.3d 1223, 1232 (9th

Cir. 2002); see also Lambrix v. Singletary, 520 U.S. 518, 524–25, 117 S. Ct. 1517,

1523, 137 L. Ed. 2d 771 (1997).

      (2) Murphy asserts that his due process rights were violated because the state

trial court erred when it instructed the jury on the victim’s right to act in defense of

a third party. He argues that the instruction on that matter interfered with the jury’s

consideration of his own claim of self-defense and thereby shifted the state’s

burden to prove beyond a reasonable doubt that he did not act in self defense2 when

he killed his victim.3 We disagree. We have reviewed the instructions as a whole

and perceive no error in their explication of state law or otherwise. However, even

if some note of ambiguity were injected, that did not infect the trial to the extent

“that the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S.

62, 72, 112 S. Ct. 475, 482, 116 L. Ed. 2d 385 (1991); see also Middleton v.

McNeil, 541 U.S. 433, 437–38, 124 S. Ct. 1830, 1832–33, 158 L. Ed. 2d 701


      2
          See People v. Banks, 137 Cal. Rptr. 652, 655 (Ct. App. 1976).
      3
       The state does not dispute the proposition that shifting the burden of proof
would constitute a due process violation. See Francis v. Franklin, 471 U.S. 307,
325, 105 S. Ct. 1965, 1977, 85 L. Ed. 2d 344 (1985).

                                            2
(2004) (per curiam). Instead, the evidence of Murphy’s murderous attack upon his

father was overwhelming. That, rather than some instructional ambiguity, most

probably led to the first degree murder verdict. See Estelle, 502 U.S. at 72–73, 112

S. Ct. at 482; see also People v. Elmore, 325 P.3d 951, 958 (Cal. 2014).

      (3) Nor has Murphy shown he is entitled to relief on the basis of ineffective

assistance of counsel. See Harrington v. Richter, 562 U.S. 86, 101–02 , 131 S. Ct.

770, 785–86, 178 L. Ed. 2d 624 (2011); Strickland v. Washington, 466 U.S. 668,

687–96, 104 S. Ct. 2052, 2064–69, 80 L. Ed. 2d 674 (1984). Because we discern

no significant error in the instructions given by the state trial court, we see no

ineffective assistance in counsel’s failure to object to those instructions,4 and, even

if there were some error, we are unable to say that it prejudiced the defense.5

      AFFIRMED.




      4
        See Juan H. v. Allen, 408 F.3d 1262, 1273 (9th Cir. 2005); see also
Strickland, 466 U.S. at 689, 104 S. Ct. at 2065; Elmore, 325 P.3d at 958.
      5
          See Harrington, 562 U.S. at 104, 111–12, 131 S. Ct. at 787–88, 791–92.

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