                                                                            FILED
                             NOT FOR PUBLICATION                            OCT 22 2013

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



                             FOR THE NINTH CIRCUIT




BERNARD LEROY MACCARLIE,                         No. 11-16126

                Petitioner - Appellant,          D.C. No. 2:00-cv-01830-LKK-
                                                 CHS
  v.

MARION SPEARMAN, Warden                          MEMORANDUM*

                Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                 Lawrence K. Karlton, Senior District Judge, Presiding

                         Argued & Submitted October 7, 2013
                              San Francisco, California


Before:         N.R. SMITH and NGUYEN, Circuit Judges, and QUIST, Senior
                District Judge.**




           This disposition is not appropriate for publication and is not precedent
            *

except as provided by 9th Cir. R. 36-3.
        The Honorable Gordon J. Quist, Senior United States District Judge for the
       **

Western Michigan, sitting by designation.
      Petitioner Bernard Lee MacCarlie appeals the district court’s denial of his

petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Reviewing the denial

of MacCarlie’s petition de novo, Jones v. Ryan, 691 F.3d 1093, 1100 (9th Cir. 2012),

we affirm.1

      The sole issue before this court is whether the inclusion of an implied malice

jury instruction on the charge of conspiracy to commit murder was prejudicial under

Brecht v. Abrahamson, 507 U.S. 619 (1993). After reviewing the record as a whole,

we agree with the district court that the instructional error did not have a “substantial

and injurious effect or influence in determining the jury’s verdict.” Id. at 638; see

also Ayala v. Wong, No. 09-99005, 2013 WL 4865145, at *13 (9th Cir. Sept. 13,

2013).       Read as a whole, the instructions—in particular the conspiracy

instruction—informed the jury that they were required to find premeditated intent, or

express malice, to convict on the conspiracy charge. Nothing in the record suggests

that the jury was confused or misled by the implied malice instruction. Moreover, the

evidence of a conspiracy to murder, including the manner in which the victim was

killed, was overwhelming.

      Finally, the arguments of both the prosecutor and MacCarlie’s counsel focused

exclusively on express malice murder, which clarified any ambiguity caused by the


         1
         We grant MacCarlie’s motion for judicial notice of his co-defendant’s
opening brief on appeal.

                                           2
errant instruction. See Middleton v. McNeil, 541 U.S. 433, 438 (2004) (argument of

counsel, particularly that of the prosecutor, may resolve an ambiguous jury charge).

      The judgment of the district court is AFFIRMED.




                                         3
