                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             APR 19 2013

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

RICHARD LEON LOUGHMILLER,                        No. 11-17691

              Petitioner - Appellant,            D.C. No. 2:09-cv-02094-JKS

  v.
                                                 MEMORANDUM*
KATHLEEN DICKINSON, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                James K. Singleton, Senior District Judge, Presiding

                            Submitted April 17, 2013**
                             San Francisco, California

Before: SCHROEDER, THOMAS and SILVERMAN, Circuit Judges.

       Richard Loughmiller appeals the district court’s order denying his petition

for habeas corpus, which challenges Loughmiller’s California convictions for

attempted murder, first degree burglary, and discharging a firearm with gross


        *
             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).
negligence. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We

affirm.

      Assuming, without deciding, that Loughmiller received ineffective

assistance of counsel when his lawyer objected to a proposed jury instruction on

the lesser-included offense of attempted voluntary manslaughter, Loughmiller did

not suffer prejudice and is not entitled to relief. By convicting Loughmiller of

attempted murder, the jury necessarily concluded that he intended to kill Arthur

Weber. Thus, it is clear that the jury rejected Loughmiller’s claim that he merely

fired a “warning shot” to scare Weber. Moreover, as Loughmiller acknowledges,

attempted voluntary manslaughter also requires proof of intent to kill. See, e.g.,

People v. Montes, 5 Cal. Rptr. 3d 800, 802-03 (Cal. Ct. App. 2003). But

Loughmiller disclaimed any intent to kill Weber. Thus, had the jury accepted

Loughmiller’s theory that he fired a warning shot after Weber attacked him, it

would have lacked sufficient evidence to convict him of the lesser-included

offense of attempted voluntary manslaughter. Absent prejudice, Loughmiller is

not entitled to relief. Strickland v. Washington, 466 U.S. 668, 687 (1984).




      AFFIRMED.


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