                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 14 2014

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



                           FOR THE NINTH CIRCUIT


DAMIAN ALCANTARA,                                No. 10-17703

              Petitioner - Appellant,            D.C. No. 2:05-cv-01700-FCD-
                                                 KJN
  v.

R. J. RACKLEY,                                   MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
               Frank C. Damrell, Jr., Senior District Judge, Presiding

                            Submitted May 12, 2014**
                             San Francisco, California

Before: D.W. NELSON, McKEOWN, and M. SMITH, Circuit Judges.

       Alcantara was convicted in California of second degree murder and street

terrorism based on an incident in which he and two gang members assaulted a rival

gang member with a stun gun, resulting in the death by stabbing of the rival gang


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
member. He appeals from the denial of his petition for a writ of habeas corpus on

the basis of alleged errors in the jury instructions and ineffective assistance of

counsel. We have jurisdiction under 28 U.S.C. § 2253. Applying the standard of

review set out in the Antiterrorism Effective Death Penalty Act of 1996, 28 U.S.C.

§ 2254(d), we affirm.

      Alcantara’s challenges to the jury instructions raise only state law claims

that are not cognizable on federal habeas, unless they deprived Alcantara of a

fundamentally fair trial. See Estelle v. McGuire, 502 U.S. 62, 72–73 (1991).

Under California Penal Code § 1111, a defendant may not be convicted based

solely on the uncorroborated testimony of an accomplice. At trial, Sanchez, an

accomplice witness, testified against Alcantara. Alcantara argues that the trial

court violated California Penal Code § 1111 by instructing the jury that an

accomplice is “a person who is subject to prosecution for the identical offenses

charged in Counts 1 and 2 and the enhancements to Count 1 against the defendant

on trial by reason of aiding and abetting.” Alcantara argues that this definition

excluded Sanchez and, therefore, permitted the jury to convict on the basis of

Sanchez’s uncorroborated testimony. We have held that “[a]s a state statutory rule,

and to the extent that the uncorroborated testimony is not ‘incredible or

insubstantial on its face,’ the rule [of California Penal Code § 1111] is not required


                                           2
by the Constitution or federal law.” Laboa v. Calderon, 224 F.3d 972, 979 (9th

Cir. 2000). Sanchez’s testimony was not incredible or insubstantial on its face. In

view of the substantial circumstantial evidence of Alcantara’s involvement in the

murder, the jury instruction did not deny Alcantara the right to a fundamentally fair

trial. See Estelle, 502 U.S. at 72–73. Nor did the court deny Alcantara any

entitlement under state law because, as the California Court of Appeal pointed out,

whether Sanchez was an accomplice was a fact question for the jury to decide. See

Laboa, 224 F.3d at 979. This claim is not cognizable on habeas.

      Alcantara next argues that the trial court denied him due process by failing

to instruct the jury that he could be found guilty of a lesser offense than the

perpetrator under the natural and probable consequences doctrine. The California

Court of Appeal determined that the trial court properly instructed the jury that it

must analyze any crimes committed by Alcantara separately from crimes

committed by a codefendant and it could only convict Alcantara of crimes that

were the natural and probable consequences of any crime he aided and abetted.

Alcantara cites no Supreme Court precedent requiring any further instructions, and

our precedent is clear: “Failure of a state court to instruct on a lesser offense fails

to present a federal constitutional question and will not be considered in a federal




                                            3
habeas corpus proceeding.” James v. Reese, 546 F.2d 325, 327 (9th Cir. 1976) (per

curiam). This claim is also not cognizable on habeas.

      Alcantara also argues that the trial court denied him due process by failing to

instruct the jury on the elements of assault and battery. The California Court of

Appeal determined that it was error to give the natural and probable consequences

instruction without defining the elements of the target offense (assault and battery),

but that the error was harmless. The conclusion that any error was harmless was

not contrary to clearly established federal law because there was no indication of

jury confusion regarding the target crimes, and the evidence would not support

finding Alcantara guilty of a lesser offense than murder. See Medina v. Hornung,

386 F.3d 872, 878 (9th Cir. 2004).

      Finally, Alcantara raises ineffective assistance of counsel on the basis of

counsel’s failure to request (i) an instruction that Alcantara could be convicted of a

lesser crime under the natural and probable consequences doctrine, and (ii) an

instruction on the elements of the target crime (assault and battery). With regard to

both instructions, Alcantara has failed to establish prejudice under Strickland v.

Washington, 466 U.S. 668 (1984). Accordingly, these claims do not merit relief.

      AFFIRMED.




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