                                                                             FILED
                             NOT FOR PUBLICATION                              NOV 29 2012

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




                             FOR THE NINTH CIRCUIT



RONNIE WINN,                                      No. 10-17163

              Petitioner - Appellant,             D.C. No. 2:03-cv-02347-JAM-
                                                  KJN
  v.

ANTHONY A. LAMARQUE,                              MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                      Argued and Submitted November 6, 2012
                             San Francisco, California

Before: SCHROEDER, KLEINFELD, and BERZON, Circuit Judges.


       Ronnie Winn appeals the district court’s denial of his petition for a writ of

habeas corpus. He makes two ineffective assistance of counsel claims and two

claims regarding the trial court’s failure to give jury instructions. We affirm the

denial of Winn’s petition.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                       I.




      Winn claims that his trial counsel provided ineffective assistance by failing

to adequately investigate and present exculpatory evidence of the victim’s cause of

death. This claim was presented to the California Supreme Court in a habeas

petition that was denied without analysis. We therefore “perform an independent

review of the record to ascertain whether the state court decision was objectively

unreasonable.” Reynoso v. Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006)

(internal quotations omitted). Our inquiry is “whether there is any reasonable

argument that counsel satisfied Strickland’s deferential standard.” Harrington v.

Richter, 131 S.Ct. 770, 788 (2011). We conclude that counsel satisfied Strickland,

because Winn has not shown that counsel’s failure to investigate and present

evidence regarding the victim’s cause of death was prejudicial. Strickland v.

Washington, 466 U.S. 668, 693-94 (1984).




      Winn also claims that his trial counsel provided ineffective assistance by

failing to call three potential defense witnesses whose testimony would have been

exculpatory. Winn’s counsel investigated all three potential witnesses, and the


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California Court of Appeal determined that there were “insufficient grounds to

fault counsel’s tactical judgment,” that they would not advance his case. The

Court of Appeal did not act contrary to or unreasonably apply Strickland.

Strickland, 466 U.S. at 689 (“[T]he defendant must overcome the presumption that,

under the circumstances, the challenged action might be considered sound trial

strategy.”) (quotation omitted).




                                         II.




      Winn claims that the trial court violated his due process rights, including his

right to present a defense, by failing sua sponte to instruct the jury on third-party

culpability and by refusing to give Winn’s requested jury instructions on causation.

“On federal habeas, the issue is ‘whether the ailing instruction by itself so infected

the entire trial that the resulting conviction violates due process.’ The burden on

the habeas petitioner is especially heavy where, as here, the alleged error involves

the failure to give an instruction.” Clark v. Brown, 450 F.3d 898, 904 (9th Cir.

2006) (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991)) (second quotation

omitted).




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      The Court of Appeal held that it was unnecessary for the trial court to give

an instruction on third-party culpability, in part because the other instructions made

it sufficiently clear that the prosecution had to prove beyond a reasonable doubt

that Winn killed the victim. That holding was not violative of the Due Process

Clause. Estelle v. McGuire, 502 U.S. at 71-73.




      The Court of Appeal also upheld the rejection of Winn’s requested

instructions on causation. The language of the instruction on the elements of the

crime was clumsy, but the rest of the instructions and the evidence and arguments

made the jury question reasonably clear. No juror was likely to have misread the

instructions to mean that Winn could be convicted of killing the victim if there was

a reasonable doubt that Winn’s blows caused the victim’s death. Whatever verbal

imperfection may have existed could not have, on this record, prejudiced Winn.

“Failure to give a jury instruction which might be proper as a matter of state law,

by itself, does not merit federal habeas relief.” Menendez v. Terhune, 422 F.3d

1012, 1029 (9th Cir. 2005) (quotation and alteration omitted). Instead, our

analysis is confined to due process. Estelle v. McGuire, 502 U.S. at 72. Winn was

not deprived of due process.




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AFFIRMED.




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