                                                                           FILED
                           NOT FOR PUBLICATION                              NOV 23 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



MICHAEL DELONGIS,                                No. 08-17143

              Petitioner - Appellant,            D.C. No. 3:06-cv-04236-PJH

  v.
                                                 MEMORANDUM *
DERRICK L. OLLISON, Warden,
Ironwood State Prison,

              Respondent - Appellee.



                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                       Argued and Submitted August 6, 2012
                            San Francisco, California

Before: KOZINSKI, Chief Judge, CALLAHAN, Circuit Judge, and
KORMAN, Senior District Judge.**

       Michael DeLongis (“DeLongis”) was sentenced to 23 years to life for second-

degree murder and corporal injury to a spouse. He appeals the denial of his habeas


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
corpus petition. DeLongis alleges that his due process and fair trial rights were

violated by the state trial court’s failure to provide voluntary intoxication and mental

disorder instructions. He argues that, absent these alleged errors, he would have been

convicted of manslaughter, not second degree murder.

      Under California law, DeLongis could be convicted of murder if the jury found

he killed his wife with implied malice. Cal. Penal Code §§ 187-88. Malice is implied

“when no considerable provocation appears, or when the circumstances attending the

killing show an abandoned and malignant heart.” Cal. Penal Code § 188. Implied

malice also exists if the defendant “actually appreciated the risk of his actions.”

People v. Superior Court, 183 Cal. App. 4 th 690, 697 (Cal. Ct. App. 2010); accord Ho

v. Carey, 332 F.3d 587, 592 (9th Cir. 2003).

      Even if DeLongis was entitled to the jury instructions, we agree with the district

court that the alleged errors didn’t have a “substantial and injurious effect or influence

in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)

(internal quotation marks omitted). DeLongis’s actions and testimony show that he

acted with implied malice. The attack was provoked only by his wife insulting him

and threatening divorce during an argument. DeLongis testified that he felt hatred

when he kicked her down the stairs. His ill-will persisted as she tumbled, and he

followed to smash her head into a wall and then repeatedly on the floor. Finally,


                                            2
DeLongis killed his wife by strangling her, understanding that doing so would, in his

words, “stop her breathing.” Under California law, “‘homicide by strangulation

indicates malice.’” Shackleford v. Hubbard, 234 F.3d 1072, 1079 (9th Cir. 2000)

(alterations omitted) (quoting People v. La Vergne, 411 P.2d 309, 313 (Cal. 1966)).

      Because the alleged instructional errors didn’t substantially and injuriously

influence the jury’s verdict, DeLongis isn’t entitled to habeas relief. Brecht, 507 U.S.

at 638.

      AFFIRMED.




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