                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 16 2010

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




                            FOR THE NINTH CIRCUIT



CHRISTOPHER DUPREE,                              No. 08-15547

              Petitioner - Appellant,            D.C. No. 02-CV-01160-FCD

  v.
                                                 MEMORANDUM *
ERNEST ROE, Warden; SACRAMENTO
COUNTY DISTRICT ATTORNEY’S
OFFICE; SACRAMENTO COUNTY
SHERIFF’S DEPARTMENT; ROBERT
BELL; KAY MAULSBY; MICHAEL
YARBOROUGH, Warden,

              Respondents - Appellees.



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

                              Submitted June 14, 2010
                              San Francisco, California

Before: RYMER and FISHER, Circuit Judges, and PALLMEYER, District
Judge.**


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Rebecca R. Pallmeyer, United States District Judge for
the Northern District of Illinois, sitting by designation.
      Christopher Dupree appeals the district court’s denial of his habeas corpus

petition under 28 U.S.C. § 2254. We affirm.

      The issue before us is whether the California Court of Appeal unreasonably

applied federal law in holding that due process was not violated by the trial court’s

instructions, or failure to instruct, on the temporal requirements for felony

robbery/burglary murder. See In re Winship, 397 U.S. 358 (1970); Estelle v.

McGuire, 502 U.S. 62, 72 (1991). It did not. The instructions told the jurors that

the killing had to occur during the commission or attempted commission of the

robbery/burglary, and the murder had to be committed to carry out or advance the

underlying felonies. Dupree points to no authority that being part of a “continuous

transaction” is a separate element on which the jury had to be instructed. Nor,

assuming dual motivations were in play, did the instructions overall fail to inform

the jury that the felonious purpose could not be merely incidental, as Dupree

contends. To the contrary, the jury was specifically instructed that the special

circumstance could not be established if the robbery/burglary were merely

incidental to commission of the murder. Thus, no Winship error appears.

      Likewise, we cannot say the instructions upheld by the court of appeal left

the entire trial so infected that Dupree’s conviction offends clearly established

notions of due process. Dupree requested no instructions that (in his view) would


                                           2
have clarified or better articulated California law along the lines he now presses.

Regardless, errors of California law, if any, are not cognizable on federal habeas

review; and Dupree points to no clearly established federal law imposing an

obligation on the trial court sua sponte to have given any different instructions.

Under the instructions that were given, a reasonable juror would not have

concluded that Dupree and the others entered the apartment just to assault Stack,

but killed Lewis instead before deciding to look for the safe; and the jury could

certainly find that killing Lewis advanced the purpose of the burglary.

      AFFIRMED.




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