                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 03 2010

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




                            FOR THE NINTH CIRCUIT



DANIEL GONZALEZ,                                  No. 08-55966

              Petitioner - Appellant,             D.C. No. 2:07-cv-03227-PA-AN

  v.
                                                  MEMORANDUM *
FERNANDO GONZALEZ, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                           Submitted September 1, 2010 **
                               Pasadena, California

Before: O’SCANNLAIN, FISHER and GOULD, Circuit Judges.

       Daniel Gonzalez appeals the denial of his petition for a writ of habeas corpus

challenging his California state court convictions. We granted a certificate of

appealability on one issue: whether the trial court’s jury instruction on actual


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
danger deprived Gonzalez of due process and a fair trial. We have jurisdiction

pursuant to 28 U.S.C. § 2253. We affirm.

      By giving the “actual danger” jury instruction on the attempted murder /

attempted voluntary manslaughter count but omitting this jury instruction from the

murder count, the trial court did not deprive Gonzalez of due process or a fair trial.

The California Court of Appeal’s conclusion that there was no instructional error is

a binding interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 76

(2005) (per curiam). As a matter of federal law, the Court of Appeal’s decision

was not contrary to or an unreasonable application of Supreme Court precedent.

See 28 U.S.C. § 2254(d). The jury instructions on self-defense, imperfect self-

defense, self-defense against assault, and absence of a duty to retreat—all of which

applied to the murder count—adequately conveyed the substance of the “actual

danger” instruction. The omission of the “actual danger” instruction from the

murder count therefore did not deprive Gonzalez of his right to jury instructions on

every element of the offense or on defenses supported by evidence in the record.

See Neder v. United States, 527 U.S. 1, 12 (1999); Mathews v. United States, 485

U.S. 58, 63 (1988). Nor did omitting the instruction from the murder count “so

infect[] the entire trial that the resulting conviction violate[d] due process.”




                                            2
Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (quoting Cupp v. Naughten, 414

U.S. 141, 147 (1973)).

      We decline to certify for appeal the uncertified issues raised in Gonzalez’s

brief because he has not made “a substantial showing of the denial of a

constitutional right.” 28 U.S.C. § 2253(c); Slack v. McDaniel, 529 U.S. 473, 484

(2000).

      AFFIRMED.




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