                            NOT FOR PUBLICATION                             FILED
                     UNITED STATES COURT OF APPEALS                          JAN 05 2017

                                                                         MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                          U.S. COURT OF APPEALS




GARY ALLEN BORTIS,                                No. 14-15833

              Petitioner - Appellant,             D.C. No. 2:11-cv-03186-KJM-
                                                  EFB
 v.

G. SWARTHOUT,                                     MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                       Argued and Submitted March 17, 2016
                             San Francisco, California

Before: W. FLETCHER, RAWLINSON, and HURWITZ, Circuit Judges.

      Petitioner-Appellant Gary Allen Bortis (Bortis), who was convicted of first-

degree murder with use of a firearm and eight counts of illegal weapons

possession, appeals the district court’s denial of his habeas petition filed pursuant



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to 28 U.S.C. §2254. He asserts that he was denied due process when the trial court

failed to instruct the jury on imperfect self-defense.

      There is no Supreme Court precedent establishing that a state trial court is

required to instruct on lesser included offenses in noncapital cases. See Beck v.

Alabama, 447 U.S. 625, 638 (1980) (discussing capital cases); see also, United

States v. Rivera-Alonzo, 584 F.3d 829, 834 n.3 (9th Cir. 2009) (“In the context of a

habeas corpus review of a state court conviction, we have stated that there is no

clearly established federal constitutional right to lesser included instructions in

non-capital cases. . . .”) (citation omitted). Failure to instruct on imperfect self-

defense was not of constitutional magnitude. See Bashor v. Riley, 730 F.2d 1228,

1240 (9th Cir. 1984) (“Failure of a state court to instruct on a lesser offense fails to

present a federal constitutional question. . .”) (citation omitted). Therefore, the

California Court of Appeal properly applied the Watson1 state-law harmless error

standard to this state-law obligation. See Bains v. Cambra, 204 F.3d 964, 975 (9th

Cir. 2000).

      As the Court of Appeal observed, Stein was convicted of being an accessory

after the fact, which indicated that the jury rejected Bortis’ testimony that he

      1
         People v. Watson, 46 Cal.2d 818, 836 (Cal. 1956) (concluding that
instructional error is not subject to reversal unless an examination of the entire
record establishes a reasonable probability that the error affected the outcome).

                                      Page 2 of 3
believed the victim was choking his companion Maryanne Stein (Stein). In

addition, the jury had an opportunity to hear Bortis and Stein discussing their

version of events on a recorded jailhouse phone call. There was no due process

violation. See Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988) (explaining

that a due process violation arises when an erroneous instruction “infect[s] the

entire trial”).

       AFFIRMED.




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