                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS

                           FOR THE NINTH CIRCUIT                              FILED
                                                                              OCT 23 2014
ERWIN VICTOR CARDENAS,                           No. 12-17349
                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

              Petitioner - Appellant,            D.C. No. 2:07-cv-02404-TJH

  v.
                                                 MEMORANDUM*
D.K. SISTO, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                  Terry J. Hatter, Senior District Judge, Presiding

                      Argued and Submitted October 8, 2014
                            San Francisco, California

Before: W. FLETCHER and WATFORD, Circuit Judges, and DUFFY, District
Judge.**

       California state prisoner Erwin Victor Cardenas appeals the denial of his 28

U.S.C. § 2254 habeas petition. We have jurisdiction under 28 U.S.C. § 2253. We

review de novo the district court’s decision to deny Cardenas’s habeas petition, see

Clabourne v. Ryan, 745 F.3d 362, 370 (9th Cir. 2014), and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
      In 2004, Cardenas was convicted of attempted murder, stalking in violation

of a restraining order, willfully inflicting corporal injury on a former spouse,

assault with a deadly weapon, and violating a restraining order. Cardenas contends

the trial court gave jury instructions that improperly relieved the state of its burden

of proof with respect to his murder conviction. Any errors the trial court may have

made with respect to the instructions were harmless. The jury was instructed that it

must find beyond a reasonable doubt that Cardenas specifically intended to murder

the victim. At Cardenas’s request, the court gave instructions on voluntary

manslaughter and accident. Even if more specific instructions would have been

appropriate, their omission did not have a “substantial and injurious effect or

influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619,

637 (1993); Byrd v. Lewis, 566 F.3d 855, 860 (9th Cir. 2009).

      Cardenas also argues that habeas relief is warranted because the state court

judge improperly imposed an “upper-term” sentence based on facts not found by

the jury. See Blakely v. Washington, 542 U.S. 296, 303 (2004). We agree that the

court erred, but conclude the error was harmless. See Washington v. Recuenco,

548 U.S. 212, 221–22 (2006); Butler v. Curry, 528 F.3d 624, 648–49 (9th Cir.

2008). The state introduced uncontroverted evidence that Cardenas made repeated

threats on the victim’s life. Based on that evidence, we conclude the jury “would

have found the relevant aggravating factor[] beyond a reasonable doubt.” Butler,

528 F.3d at 648. Accordingly, the error was harmless.

                                          -2-
      We construe Cardenas’s additional arguments regarding the jury instructions

and an alleged plea offer as a motion to expand the certificate of appealability. See

9th Cir. R. 22-1(e). So construed, the motion is denied.

      AFFIRMED.




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