                             NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                         NOV 1 2016
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 MARCELLA LUNSFORD,                                No.   14-17548

                   Petitioner-Appellant,           D.C. No. 4:08-cv-05038-PJH

   v.
                                                   MEMORANDUM*
 TINA HORNBEAK, Warden; GLORIA
 HENRY,

                   Respondents-Appellees.

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

                       Argued and Submitted October 20, 2016
                             San Francisco, California

Before: GRABER and MURGUIA, Circuit Judges, and COLLINS,** Chief
District Judge.

        Marcella Lunsford, a California state prisoner, appeals from the district

court’s denial of her petition for a writ of habeas corpus. In her petition, Lunsford


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
              The Honorable Raner C. Collins, United States Chief District Judge
for the District of Arizona, sitting by designation.
challenges her convictions for first degree murder and conspiracy to commit

murder. As the parties are familiar with the facts, we do not recount them here. We

have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), we may grant relief only when a state court’s adjudication of a claim

“resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court of the United States,” or “that was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d).

      1.     Lunsford argues that the state trial court’s first degree murder

instruction violated due process because it improperly allowed the jury to return a

guilty verdict if it concluded, beyond a reasonable doubt, that the murder was

committed to kill a witness. The Supreme Court has made clear that an

instructional error permitting the jury to select among alternative theories of guilt,

one of which was invalid, is not structural error requiring an automatic voiding of

the verdict; instead, the claim must be assessed under the harmless error review

standard. See Hedgpeth v. Pulido, 555 U.S. 57, 58 (2008) (per curiam). On direct

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appeal, the California Court of Appeal agreed that the jury had been improperly

instructed that murder is automatically elevated to first degree murder because the

victim is a witness. However, the Court of Appeal denied Lunsford’s instructional

challenge on the merits, concluding that the error was harmless because the jury

unanimously found true the special circumstance allegation that Lunsford had

committed the murder by means of lying in wait, another theory of first degree

murder on which the trial court instructed the jury. The Court of Appeal’s decision

that the trial court committed error in its jury instruction but that the error was

harmless was not contrary to any Supreme Court law and was not “objectively

unreasonable.” See Mitchell v. Esparza, 540 U.S. 12, 18 (2003) (per curiam).

      2.     Lunsford also argues that the trial court’s jury instructions on the

lying-in-wait theory of first degree murder and lying-in-wait special circumstance

were defective because they did not require the jury to find that she personally

intended that the murder be committed by lying in wait or that lying-in-wait

murder was a “natural and probable consequence” of her conduct, or that the time

period of “waiting” was substantial in length. The California Court of Appeal

rejected this argument, determining that the jury instructions on the lying-in-wait

theory of first degree murder and lying-in-wait special circumstance were not

                                           3
defective. Even assuming the jury instructions on these theories had been

defective, Lunsford’s challenge is grounded exclusively in state law and does not

raise any issue of federal rights; therefore, it does not merit federal habeas

relief. Estelle v. McGuire, 502 U.S. 62, 67 (1991). (“[F]ederal habeas corpus relief

does not lie for errors of state law.”).

      3.     Lunsford next argues that she is entitled to federal habeas relief

because the trial court failed to include in its instructions to the jury the eight overt

acts that were alleged to have been committed in furtherance of the conspiracy. In

rejecting this argument, the California Court of Appeal held that the omission of

the overt acts from the jury instruction was harmless because Lunsford’s

conviction of the target offense of murder necessarily satisfies the overt act

requirement for the charge of conspiracy to commit the target offense. This

decision is not contrary to, nor an unreasonable application of, any clearly

established Supreme Court law because the Supreme Court has never held that a

defendant’s right to due process is violated when a conspiracy instruction does not

explicitly list which overt acts the prosecution believes were taken in furtherance

of the charged conspiracy. See Holley v. Yarborough, 568 F.3d 1091, 1101 (9th

Cir. 2009) (“Absent such ‘clearly established Federal law,’ we cannot conclude

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that the state court’s ruling was an ‘unreasonable application.’”). Even absent the

conspiracy instruction, the jury necessarily found that Lunsford had committed at

least one act in furtherance of the conspiracy when it convicted her of the murder

count. United States v. Baldwin, 987 F.2d 1432, 1438 (9th Cir. 1993) (holding that

an instructional error is harmless “if no rational jury could have made [its] findings

without also finding the omitted . . . fact to be true”).

      4.     Lunsford also argues that she was deprived of her Sixth Amendment

right to effective representation by her trial counsel’s failure to object to or move

for a new trial on the basis of purported prosecutorial misconduct—namely, the

prosecution’s “threat” of a long prison term for Lunsford’s son, Charles, if he

testified on her behalf, and references to statements from Lunsford’s daughter,

Chasity, concerning Chasity’s son’s paternity and whether Charles could read.

Because no court has issued a certificate of appealability (“COA”) as to this claim,

we construe this argument as a motion to expand the COA, which the court may

grant only if Lunsford makes “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c)(2); Hiivala v. Wood, 195 F.3d 1098,

1104–05 (9th Cir. 1999) (per curiam). To satisfy this standard, Lunsford must

demonstrate that “reasonable jurists could debate whether . . . the petition should

                                            5
have been resolved in a different manner or that the issues presented were adequate

to deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

484 (2000) (internal quotation marks omitted).

      To succeed on a claim of ineffective assistance, a habeas petitioner must

prove that his “counsel’s representation fell below an objective standard of

reasonableness,” and that there was “a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Where, as

here, a state court has denied a Strickland claim on the merits, AEDPA’s strictures

impose an additional level of deference “that gives both the state court and the

defense attorney the benefit of the doubt.” Burt v. Titlow, 134 S. Ct. 10, 13 (2013).

      The California Court of Appeal reasonably applied Strickland in denying

Lunsford’s ineffective assistance claim. The challenged “threat” against Charles

made no mention of Lunsford or the charges pending against her, and therefore the

Court of Appeal reasonably determined that no misconduct occurred vis-à-vis

Charles’s absence as a witness at Lunsford’s trial. Accordingly, the Court of

Appeal reasonably concluded that counsel was not ineffective in failing to raise the

issue. The Court of Appeal also reasonably determined that Lunsford’s attorney

                                          6
had not been ineffective during the prosecution’s cross-examination of Chasity or

closing arguments, explaining that “the prosecut[ion] was entitled to explore the

issue of Chasity’s credibility on cross-examination” by pointing out that she “took

whatever position [in her paternity dispute that] was expedient at the moment”

regardless of the truth. The Court of Appeal accordingly reasoned that Lunsford

was not the victim of constitutionally ineffective assistance of counsel because “the

outcome [of her trial] would not have been different if counsel had objected

because it is not reasonably probable [an] objection [to the prosecution’s

impeachment] would have been sustained.” The Court of Appeal reasonably

concluded that counsel’s failure to object to a portion of the prosecution’s closing

argument that referenced Charles’s literacy was similarly not prejudicial. The

Court of Appeal’s application of Strickland was reasonable and, because

reasonable jurists are unlikely to disagree that the Court of Appeal correctly

applied clearly established Supreme Court law in denying Lunsford’s claim of

ineffective assistance of counsel, we decline to expand the COA as to these issues.

      AFFIRMED.




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