                   FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

WILLIAM EMERSON TOWNSEND,                      No. 07-15712
              Petitioner-Appellant,
                                                  D.C. No.
                v.
                                               CV-03-00520-
MICHAEL KNOWLES, Warden, Ione                    GEB(PAN)
State Prison,
                                                 OPINION
              Respondent-Appellee.
                                         
        Appeal from the United States District Court
           for the Eastern District of California
        Garland E. Burrell, District Judge, Presiding

                   Argued and Submitted
          March 9, 2009—San Francisco, California

                      Filed April 21, 2009

 Before: Procter Hug, Jr. and Carlos T. Bea, Circuit Judges,
          and Nancy G. Edmunds,* District Judge.

                  Opinion by Judge Edmunds




   *The Honorable Nancy G. Edmunds, United States District Judge for
the Eastern District of Michigan, sitting by designation.

                               4625
                     TOWNSEND v. KNOWLES                    4629
                          COUNSEL

John Paul Balazs, Law Offices of John P. Balazs, for the
petitioner-appellant.

Robert Todd Marshall, Assistant Attorney General, AGCA -
Office of the California Attorney General (SAC), for the
respondent-appellee.


                          OPINION

EDMUNDS, District Judge:

   William Emerson Townsend, a California state prisoner,
appeals the district court’s order denying his 28 U.S.C. § 2254
habeas corpus petition, which challenged his conviction for
second degree murder. In this appeal, we are asked to decide
whether Townsend’s petition is untimely based on an inter-
vening change in the law, see Pace v. DiGuglielmo, 544 U.S.
408 (2005). We conclude that, although he is ineligible for
statutory tolling, Townsend is entitled to equitable tolling. See
Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008), cert. denied
sub nom. Brunson v. Harris, 129 S. Ct. 397 (2008). Because
equitable tolling renders Townsend’s petition timely filed, we
consider the merits of his appeal. We affirm the district
court’s denial of Townsend’s habeas petition. The district
court correctly concluded that the California Superior Court’s
rejection of Townsend’s due process and ineffective assis-
tance claims was not contrary to or an unreasonable applica-
tion of clearly established federal law.

                               I

A.   State Court Proceedings

  On June 10, 1997, a complaint was filed in Sacramento
County Superior Court charging Townsend with one count of
4630                      TOWNSEND v. KNOWLES
murder and alleging an enhancement that he personally used
a dangerous weapon, i.e., a knife, during the charged crime of
murder. A jury acquitted Townsend of first degree murder but
found him guilty of the lesser included crime of second
degree murder. Cal. Penal Code § 187. The jury also found
true the allegation that Townsend personally used a knife dur-
ing the murder. Cal. Penal Code § 12022(b).

   On September 4, 1998, Townsend was sentenced to 15
years to life for his conviction of second degree murder and
was further ordered to serve a one-year consecutive sentence
for his personal use of a knife within the meaning of Califor-
nia Penal Code § 12022(b). That same day, Townsend filed a
notice of appeal.

   On June 30, 2000, the California Court of Appeal affirmed
Townsend’s judgment and sentence. Townsend filed a timely
petition for review in the California Supreme Court. That peti-
tion was denied on October 18, 2000.

   On November 20, 2001, Townsend filed a state habeas
petition in the Sacramento Superior Court raising for the first
time the claims he later raised in his federal habeas petition.

  On December 17, 2001, the Superior Court issued a rea-
soned opinion denying Townsend’s habeas petition as both
untimely under In re Clark, 855 P.2d 729 (Cal. 1993), and
without merit.

   On February 7, 2002, Townsend filed a state habeas peti-
tion in the California Court of Appeal reiterating the claims
asserted in his Superior Court petition.1 The California Court
  1
   Under California law, “a state prisoner may seek review of an adverse
lower court decision by filing an original petition (rather than a notice of
appeal) in the higher court, and that petition is timely if filed within a ‘rea-
sonable time.’ ” Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008) (inter-
nal quotations and citations omitted).
                         TOWNSEND v. KNOWLES                          4631
of Appeal denied Townsend’s petition without explanation on
February 21, 2002.

   On June 13, 2002, Townsend filed a state habeas petition
in the California Supreme Court reiterating the same claims
as those asserted in his Superior Court petition. The California
Supreme Court issued a silent denial of Townsend’s state
habeas petition on January 22, 2003.

B.    Federal Court Proceedings

   On March 13, 2003, Townsend filed his federal habeas
petition in the district court, and it was referred to a magistrate
judge. The government filed an answer on July 8, 2003 that
did not assert, as an affirmative defense, that the one year stat-
ute of limitations period under the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1),
had expired.

   On April 21, 2006, the magistrate judge filed findings and
recommendations, finding that Townsend’s claims were not
procedurally defaulted but recommending that Townsend’s
petition be denied on the merits. Townsend filed objections on
May 7, 2006. The district court, after a de novo review,
adopted the findings and recommendations in full, and denied
Townsend’s federal habeas petition on June 5, 2006.

   Townsend filed a timely notice of appeal, and this court
granted Townsend’s certificate of appealability with respect
to the following three issues: (1) whether the trial court erred
by instructing the jury with regard to the felony murder rule;
(2) whether trial counsel provided ineffective assistance by
failing to challenge the instruction; and (3) whether these
claims are procedurally barred.2
  2
   We decline to address the uncertified issue in this case because Town-
send has not satisfied his burden of showing “that jurists of reason would
find it debatable whether the petition states a valid claim of the denial of
a constitutional right . . .” Slack v. McDaniel, 529 U.S. 473, 484 (2000).
4632                      TOWNSEND v. KNOWLES
                                      II

A.     Timeliness of Townsend’s Federal Habeas Petition

   Before addressing the merits of Townsend’s petition, we
must decide whether that petition is untimely based on an
intervening change in the law, see Pace v. DiGuglielmo, 544
U.S. at 413-14.3 “The facts underlying this claim for tolling
of AEDPA’s limitations period are undisputed. We review de
novo whether the statute of limitations should be tolled.”
Harris, 515 F.3d at 1054.

   Townsend’s conviction became final on January 16, 2001,
and absent tolling, the last day for Townsend to file a federal
habeas petition was January 16, 2002. Townsend’s judgment
of conviction became “final” within the meaning of 28 U.S.C.
§ 2244(d)(1)(A) when the time for filing a petition for writ of
certiorari in the United States Supreme Court expired. “A
judgment becomes final for purposes of 28 U.S.C. § 2244(d)
when the period for filing a petition for certiorari in the U.S.
Supreme Court expires. Petitions for certiorari must be filed
in the U.S. Supreme Court within 90 days after the supreme
court of the state in which the prisoner was convicted issues
its opinion or denies review.” Harris, 515 F.3d at 1053 n.1
(internal citations omitted). As shown below, Townsend is not
eligible for statutory tolling but is entitled to equitable tolling.
  3
    Townsend argues that the government waived any challenge to the
timeliness of his petition by failing to raise the statute of limitations as an
affirmative defense before the district court. Although this court will not
generally address issues raised for the first time on appeal, where as here
there has been an intervening change in law that we need only apply to
an adequately developed record, we may consider the issue. See In re Cel-
lular 101, Inc., 539 F.3d 1150, 1156 (9th Cir. 2008). Because the Supreme
Court’s decision in Pace changed the controlling law regarding tolling of
the statute of limitations for habeas corpus petitions and the record is ade-
quately developed in this regard, we choose to address the timeliness of
Townsend’s petition.
                      TOWNSEND v. KNOWLES                     4633
  1.   Statutory Tolling

   [1] AEDPA imposes a one-year statute of limitations period
for federal habeas petitions and also addresses tolling of that
limitations period. 28 U.S.C. § 2244(d). Section 2244(d)(2)
provides that “[t]he time during which a properly filed appli-
cation for State post-conviction or other collateral review with
respect to the pertinent judgment or claim is pending shall not
be counted toward any period of limitation under this subsec-
tion.” Id. at 2244(d)(2) (emphasis added). The United States
Supreme Court has interpreted the statutory term “properly
filed.” In Artuz v. Bennett, 531 U.S. 4, 8 (2000), it determined
that “an application is ‘properly filed’ when its delivery and
acceptance are in compliance with the applicable laws and
rules governing filings.” It was subsequently determined, in
Pace, 544 U.S. at 417, that a state’s “time limits, no matter
their form, are ‘filing’ conditions.” Accordingly, if “the state
court rejected” a state habeas petition “as untimely, it was not
‘properly filed,’ and [the petitioner] is not entitled to statutory
tolling under § 2244(d)(2).” Id.; accord Bonner v. Carey, 425
F.3d 1145, 1148-49 (9th Cir. 2005) (observing that “[t]he fact
that California provides exceptions to its timely filing require-
ment” and “the fact that the superior court also denied [the
petitioner]’s petition on the merits” do not alter the conclusion
that an untimely state filing is not properly filed within the
meaning of § 2244(d)(2)), opin. amended on other grounds,
439 F.3d 993 (9th Cir. 2006).

   [2] Townsend is not entitled to statutory tolling. Because
the California Court of Appeal and Supreme Court denied his
state habeas petitions without any reasoning, we look to the
Sacramento Superior Court’s decision denying Townsend’s
habeas petition as the last reasoned state court decision. Mar-
tinez v. Garcia, 379 F.3d 1034, 1037 n.2 (9th Cir. 2004). The
California Superior Court held that Townsend’s petition was
untimely; and, therefore, the petition was not “properly filed”
as required by 28 U.S.C. § 2244(d)(2). See Pace, 544 U.S. at
413-14, 417; Bonner, 425 F.3d at 1148-49. Absent equitable
4634                 TOWNSEND v. KNOWLES
tolling, Townsend’s habeas petition is time-barred because
AEDPA’s one-year statute of limitations period expired on
January 16, 2002, and he did not file his federal habeas peti-
tion until March 13, 2003.

  2.   Equitable Tolling

   [3] Although he is ineligible for statutory tolling, Town-
send is entitled to equitable tolling. The threshold for obtain-
ing equitable tolling is very high, but it applies where a
petitioner shows that despite diligently pursuing his rights,
some extraordinary circumstance prevented him from timely
filing. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011
(9th Cir. 2009) (clarifying that this court’s standard for equita-
ble tolling is consistent with the standard discussed in Pace).
In Harris, this court observed that “[u]ntil the Supreme Court
decided Pace on April 27, 2005, our circuit law was different.
Our precedent stated that an untimely . . . State post-
conviction petition was ‘properly filed’ for purposes of
§ 2244(d) and tolled the statute of limitations while the peti-
tion was pending in the state courts.” Harris, 515 F.3d at 1053
(citing Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.
2001)). Prior to Pace, this court had determined that
§ 2244(d)’s statute of limitations was tolled for “ ‘all of the
time during which a state prisoner is attempting, through
proper use of state court procedures, to exhaust state court
remedies with regard to a particular post-conviction applica-
tion.’ ” Harris, 515 F.3d at 1053 n.3 (quoting Nino v. Galaza,
183 F.3d 1003, 1006 (9th Cir. 1999)). After Pace, an untimely
filed state habeas petition no longer tolls § 2244(d)’s one-year
statute of limitations. The petitioner in Harris, similar to
Townsend here, “argued that he was entitled to equitable toll-
ing of the statute of limitations because he relied on control-
ling Ninth Circuit precedent in waiting to file his federal
habeas petition.” Harris, 515 F.3d at 1054. This court found
Harris’ argument persuasive. It concluded that his “circum-
stances justify equitable tolling” because he “diligently pur-
sued his rights” in state court and “ensur[ed] that enough time
                     TOWNSEND v. KNOWLES                    4635
would remain to file a federal habeas petition under the then-
existing Dictado rule.” Id. at 1055-56. Through no fault of his
own, “Harris’ petition became time-barred the moment that
Pace was decided.” Id. at 1056. “The Supreme Court’s over-
ruling of the Dictado rule made it impossible for Harris to file
a timely petition.” Id. This court concluded that “[t]hese are
precisely the circumstances in which equitable principles jus-
tify tolling of the statute of limitations.” Id. The same holds
true here.

   [4] Townsend asserts that he relied on controlling Ninth
Circuit precedent in waiting to file his federal habeas petition.
Townsend also diligently pursued his rights in his post-
conviction habeas petition in the state courts and ensured that
he had enough time remaining to file a federal habeas petition
under the then-existing Dictado rule. Under that rule, 308
days had expired between January 17, 2001, when AEDPA’s
one-year statute of limitations period began to run, and
November 20, 2001, when Townsend filed his first state
habeas petition. The entire period of time between November
20, 2001 and the California Supreme Court’s summary denial
of his state habeas petition on January 22, 2003 would have
been tolled under the then-existing Dictado rule. An addi-
tional 50 days elapsed between that January 22, 2003 date and
the day he filed his federal habeas petition on March 13,
2003. Because less than 365 days had expired, Townsend’s
federal habeas petition would have been considered timely
pre-Pace. Accordingly, we conclude that equitable principles
dictate that AEDPA’s one-year statute of limitations be tolled
here.

   We now consider whether Townsend’s claims were proce-
durally defaulted. This court reviews de novo the denial of a
petition for a writ of habeas corpus brought under 28 U.S.C.
§ 2254. Harris, 515 F.3d at 1054.

B.   Procedural Default

   The Sacramento County Superior Court denied Townsend’s
first post-conviction habeas petition as untimely. The govern-
4636                 TOWNSEND v. KNOWLES
ment argues, therefore, that Townsend’s claims were proce-
durally defaulted. The district court concluded that the
government failed to meet its burden of proving that Califor-
nia’s untimeliness rule is an independent and adequate state
procedural ground for denying habeas relief. We affirm the
district court’s decision.

   [5] If the state court’s denial of Townsend’s state habeas
petition for untimeliness “rest[ed] on a state law ground that
is independent of the federal question and adequate to support
the judgment,’ ” then Townsend “is procedurally barred from
pursuing his claims in federal court.” Bennett v. Mueller, 322
F.3d 573, 580 (9th Cir. 2003) (quoting Coleman v. Thompson,
501 U.S. 722, 729 (1991)). To constitute a procedural bar, the
state’s rule had to be independent and adequate at the time
Townsend purportedly failed to comply with it. See Fields v.
Calderon, 125 F.3d 757, 760 (9th Cir. 1997). We consider
whether the California timeliness bar was independent and
adequate in 2001, when the state trial court found Townsend’s
petition to be untimely. This court has recognized that Cali-
fornia’s timeliness rule became independent of federal law in
1998, Bennett, 322 F.3d at 582-83, so we need only consider
whether the California timeliness rule was adequate as of
2001.

   To be adequate, a state procedural rule must be “well-
established and consistently applied.” Id. at 583. A procedural
rule can be neither well-established nor consistently applied
if it is not “clear and certain.” King v. LaMarque, 464 F.3d
963, 965 (9th Cir. 2006). State procedural rules allowing the
exercise of judicial discretion are not necessarily uncertain,
but the exercise of any such discretion must be according to
standards that are not vague or ambiguous. Bennett, 322 F.3d
at 583; see King, 464 F.3d at 966 (“[S]tate procedural rules
with overly vague standards do not provide petitioners with
sufficient notice of how they may avoid violating the rules.”).

  [6] The government concedes that under the burden-
shifting analysis articulated in Bennett, it bears the burden of
                       TOWNSEND v. KNOWLES                        4637
proving the adequacy of the California rule. See 322 F.3d at
585-86. To do so, the government should present state author-
ity regarding the rule. See id. at 586. Because California’s
timeliness rule differs for capital and non-capital cases, capi-
tal cases should only be considered in non-capital cases inso-
far as they discuss the aspects of the rule that apply to all state
habeas petitions. See id. at 581-83 (considering capital cases
to determine whether the state bar was independent of federal
law but noting that reliance on a capital case was misplaced
in deciding the adequacy of the timeliness rule for a non-
capital case). Also, state authority from after the time of the
purported default is generally irrelevant in determining
whether the rule was adequate at the time in question. Lam-
bright v. Stewart, 241 F.3d 1201, 1203 n.2 (9th Cir. 2001).
Thus, to meet its burden, the government in this case should
have presented state authority showing that the timeliness rule
was clear and certain, well-established, and consistently
applied in non-capital cases as of 2001.

   [7] To show that the California timeliness rule was clear at
the time of Townsend’s purported default, the government
offers this court’s definition of the state rule and argues that
the rule is easily defined. We disagree. In California, a habeas
petition is untimely if it is filed after an unjustified, substan-
tial delay. In re Clark, 855 P.2d 729, 750, 762-63 (Cal. 1993);
see also King, 464 F.3d at 966; Bennett, 322 F.3d at 581. This
rule is easily stated, but “substantial delay” has not yet been
defined. For capital cases, California has offered some guid-
ance. The California Supreme Court adopted standards for
habeas petitions in capital cases in 1986, those standards cre-
ated “a presumption of timeliness if a [habeas] petition by a
capital defendant is filed within 90 days of the final due date
for the filing of an appellant’s reply brief [on direct appeal]
. . . .” Clark, 855 P.2d at 751. At least for capital cases, it
seems that anytime within 90 days4 after the reply brief due
date is not “substantial delay.”
  4
   Since deciding Clark, the California Supreme Court has extended the
presumptively timely period for habeas petitions in capital cases to 180
4638                   TOWNSEND v. KNOWLES
   As the government admits, this presumption of timeliness
does not apply to non-capital cases. See id. at 751. In King,
this court noted that in Clark the California Supreme Court
provided no standards for determining what constitutes “sub-
stantial delay” in a non-capital case, 464 F.3d at 966, and the
government here offers no state authority setting forth such
standards. The government attempts to prove the certainty of
the rule by noting how frequently it is applied, to capital and
non-capital cases alike. Frequent application of a vague stan-
dard in dispositions that offer no guidance, however, does not
serve to clarify that standard. See King, 464 F.3d at 966 (“The
rule’s ambiguity is not clarified by the California Supreme
Court’s application of the timeliness bar, in part because the
court usually rejects cases without explanation, only citing
Clark and Robbins, as it did here.”). The government also
urges us to consider the clarity of the exceptions to the gen-
eral rule, for example, when “substantial delay” is justified.
No matter how clear the exceptions may be, they do not lend
clarity to the underlying rule. See id.

   In a unique argument, the government contends that Cali-
fornia’s timeliness bar is certain because it is similar to
AEDPA’s statute of limitations. Both timeliness bars, it
argues, begin measuring the passage of time when a petitioner
knew or should have known of the factual bases for his claim.
Compare In re Robbins, 959 P.2d 311, 317 (Cal. 1998)
(“Substantial delay is measured from the time the petitioner
or his or her counsel knew, or reasonably should have known,
of the information offered in support of the claim and the
legal basis for the claim.”) with 28 U.S.C. § 2244(d)(1) (“The
limitation period shall run from the latest of . . . the date on

days after the reply brief due date or 36 months after appointment of
appellate counsel, whichever is later. See Cal. Supreme Ct., Supreme
Court Policies Regarding Cases Arising From Judgments of Death, policy
3, std. 1-1.1 (Jan. 1, 2008), available at http://www.courtinfo.ca.gov/
courts/supreme/aa02f.pdf.
                     TOWNSEND v. KNOWLES                   4639
which the factual predicate of the claim or claims presented
could have been discovered through the exercise of due dili-
gence.”). The two timeliness bars may share a type of trigger-
ing event, but the government ignores the major distinction:
AEDPA requires filing within one year of that event and Cali-
fornia requires a petitioner to file without “substantial delay”
from that event. Clarity of the triggering event does not make
clear what amount of time may pass before a filing is
untimely.

   [8] Because the government offers no evidence that Cali-
fornia operated under clear standards for determining what
constituted “substantial delay” in 2001, it failed to meet its
burden of proving that California’s timeliness bar was suffi-
ciently clear and certain to be an adequate state bar. The dis-
trict court correctly concluded that the government failed to
meet its burden and that Townsend’s claims are not procedur-
ally defaulted. We, therefore, address the merits of Town-
send’s claims.

C.   Townsend’s Due Process Rights

   Townsend claims that he is entitled to habeas relief because
the California trial court violated his Fourteenth Amendment
due process rights when it instructed the jury on the crime of
felony-murder, thus permitting the jury to convict him of sec-
ond degree murder absent proof of malice aforethought. See
Carella v. California, 491 U.S. 263, 265 (1989) (observing
that “[t]he Due Process Clause of the Fourteenth Amendment
denies States the power to deprive the accused of liberty
unless the prosecution proves beyond a reasonable doubt
every element of the charged offense.”). We affirm the denial
of Townsend’s habeas claim based upon a violation of his due
process rights.

   Federal habeas corpus relief is available to a state prisoner
when it is shown that “a state court’s adjudication of his con-
stitutional claim was ‘contrary to, or involved an unreason-
4640                 TOWNSEND v. KNOWLES
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States.’ ”
Middleton v. McNeil, 541 U.S. 433, 436 (2004) (quoting 28
U.S.C. § 2254(d)(1)). Here, Townsend challenges “the state
court’s application of governing federal law,” and thus he is
required to show that this application is “not only erroneous,
but objectively unreasonable.” Id. (internal quotation marks
and citations omitted).

   [9] Due process requires that jury instructions in criminal
trials give effect to the prosecutor’s burden of proving every
element of the crime charged beyond a reasonable doubt. Id.
at 437. “Nonetheless, not every ambiguity, inconsistency, or
deficiency in a jury instruction rises to the level of a due pro-
cess violation.” Id. Federal habeas relief is available for jury
instruction errors that “so infected the entire trial that the
resulting conviction violates due process,” thus rendering the
trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62,
72 (1991). The challenged jury instructions “may not be
judged in artificial isolation, but must be considered in the
context of the instructions as a whole and the trial record.” Id.
(internal quotation marks and citation omitted). “If the charge
as a whole is ambiguous, the question is whether there is a
reasonable likelihood that the jury has applied the challenged
instruction in a way that violates the Constitution.” Middleton,
541 U.S. at 437. The law presumes that the jury follows the
instructions given. Richardson v. Marsh, 481 U.S. 200, 211
(1987).

   Townsend was charged with murder, and the state also
alleged with specificity that he personally used a deadly and
dangerous weapon, namely a knife, during the commission of
the charged murder. Townsend’s defense was that he acted at
most in the heat of passion or at least in self-defense.

   Townsend claims that, after the trial court instructed his
jury on the elements of first and second degree murder and
voluntary and involuntary manslaughter, it erroneously
                    TOWNSEND v. KNOWLES                    4641
instructed the jury on the theory of felony murder. Townsend
argues that this erroneous instruction, when combined with
instructions given on the enhancement allegation that Town-
send personally used a deadly or dangerous weapon, rose to
the level of a due process violation because it permitted the
jury to convict him of felony murder without finding malice
aforethought. We reject Townsend’s arguments.

   Townsend’s jury was instructed on the elements of first
degree murder, second degree murder, voluntary manslaugh-
ter, and involuntary manslaughter. These instructions
expressly informed the jury that the crime of murder is the
unlawful killing of a human being with malice aforethought
whereas the crime of manslaughter is the unlawful killing of
a human being without malice aforethought. The jury was
given additional instructions based on California Criminal
Jury Instructions 8.50 and 8.51 designed to help them to dis-
tinguish between the crimes of murder and manslaughter:

    The distinction between murder and manslaughter is
    that murder requires malice while manslaughter does
    not.

    ***

    To establish that a killing is murder and not man-
    slaughter, the burden is on the People to prove
    beyond a reasonable doubt each of the elements of
    murder, and that the act which caused the death was
    not done in the heat of passion, or upon a sudden
    quarrel or in the actual, even though unreasonable
    belief, in the necessity to defend against imminent
    peril to life or great bodily injury.

    ***

    If a person causes another’s death, while committing
    a felony which is dangerous to human life, the crime
4642                  TOWNSEND v. KNOWLES
      is murder. If a person causes another’s death while
      committing a misdemeanor or infraction which is
      dangerous to human life under the circumstances of
      its commission, the crime is involuntary manslaugh-
      ter.

      There are many acts which are lawful but neverthe-
      less endanger human life. If a person causes anoth-
      er’s death by doing an act or engaging in conduct in
      a criminally negligent manner, without realizing the
      risk involved, he is guilty of involuntary manslaugh-
      ter. If, on the other hand, the person realized the risk
      and acted in total disregard of the danger to life
      involved, malice is implied, and the crime is murder.

(Emphasis added).

   The jury was also instructed on the enhancement allegation.
If the jury found Townsend guilty of the charged crime of
murder or the lesser included crime of manslaughter, they
were instructed to then determine whether the government
had proven beyond a reasonable doubt that Townsend had
personally used a deadly or dangerous weapon during the
commission of the crime of murder or manslaughter.

   Townsend improperly plucks a sentence that references
both “felony” and “murder” from a jury instruction illustrat-
ing the difference between murder and manslaughter, com-
bines it with the enhanced allegation instruction, and argues
that these instructions permitted the jury to convict him of fel-
ony murder absent a finding of malice aforethought because
an underlying felony—assault with a deadly weapon—was an
integral part of the murder and merged with the charged crime
of murder. See People v. Hansen, 885 P.2d 1022, 1028 (Cal.
1994), overruled by People v. Sarun Chun, ___ P.3d ___,
2009 WL 805180 (Cal. 2009).5 Townsend’s argument ignores
  5
   In Sarun-Chun, the California Supreme Court overruled Hansen,
applying a new merger analysis for felony-murder, but under the new
                       TOWNSEND v. KNOWLES                        4643
essential facts. He was not charged with and his jury was not
instructed on felony-murder. See Cal. Crim. J. Instr. 8.32. He
was not charged with and his jury was not instructed on any
felony other than murder and manslaughter. He was not
charged with the felony of assault with a deadly weapon, and
his jury was not instructed that an assault with a deadly
weapon is a felony that is inherently dangerous to human life.
Townsend’s jury, therefore, had no basis for imputing malice
based upon the uncharged felony of assault with a deadly
weapon.

   [10] Townsend was found guilty of second degree murder.6
The second degree murder instructions required the jury to
find that Townsend acted with either express or implied mal-
ice aforethought. He was not acquitted of murder and found
guilty of the lesser included charge of manslaughter—a
charge that did not require proof of malice aforethought.
Thus, contrary to Townsend’s arguments here, the jury must
have found that he acted with malice.

   Townsend’s reliance on Suniga v. Bunnell, 998 F.2d 664,
666 (9th Cir. 1993), is misplaced. Unlike the tangential refer-
ence at issue here, in Suniga, the trial court did instruct the
jury on the separate theory of felony-murder. Unlike here, the
jury in Suniga was also instructed that an assault with a
deadly weapon is a felony that is inherently dangerous to
human life. Id. at 666, 668-70. The Suniga court found a due
process violation because, by virtue of being instructed on fel-
ony murder as well as the felony of assault with a deadly
weapon, the jury could have convicted Suniga of murder by

analysis we believe assault with a deadly weapon would continue to merge
with murder. Sarun-Chun, 2009 WL 805180 at *17-18. Given our conclu-
sion, the change is irrelevant.
   6
     The jury also found that the government had proven beyond a reason-
able doubt that Townsend had personally used a deadly or dangerous
weapon during the commission of the crime of murder.
4644                 TOWNSEND v. KNOWLES
inappropriately relying on his commission of the underlying
felony and without considering the element of malice. Id. at
669-70. Because Townsend’s jury was not provided with the
instructions found objectionable in Suniga, the reasoning and
result in that decision do not apply here.

   [11] Considering the challenged instruction in the context
of all the instructions provided, we conclude that its tangential
reference to “felony” and “murder” did not so infect the trial
“that the resulting conviction violates due process.” Estelle,
503 U.S. at 72. A review of Townsend’s jury instructions has
not shown that “there is a reasonable likelihood that the jury
has applied the challenged instruction in a way that violates
the Constitution.” Id. (internal quotation marks and citation
omitted).

   [12] Because the challenged jury instruction did not so
infect the entire trial that Townsend’s resulting conviction
violated due process, we conclude that the district court did
not err when it denied Townsend’s claim for habeas relief.
The district court correctly concluded that the California
Superior Court’s rejection of Townsend’s due process claim
was not contrary to or an unreasonable application of clearly
established federal law.

D.     Ineffective Assistance of Counsel

   [13] Townsend claims that his trial counsel rendered inef-
fective assistance because he failed to object to the jury
instruction that made the alleged reference to felony murder.
The Sixth Amendment guarantees the effective assistance of
counsel. See Strickland v. Washington, 466 U.S. 668 (1984).
To prevail on this claim, Townsend must show that his coun-
sel’s performance fell below an objective standard of reason-
ableness and that he was prejudiced by counsel’s conduct. Id.
at 687. Because Townsend suffered no prejudice as a result of
his trial counsel’s inaction, we conclude that the district court
did not err when it denied Townsend’s claim for habeas relief.
                     TOWNSEND v. KNOWLES                    4645
   [14] Prejudice requires a showing that “there is a reason-
able probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Id. at
694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. Townsend cannot
demonstrate prejudice for the same reasons he cannot show
error in his direct challenge to the jury instruction that alleg-
edly references felony murder. As discussed above, it was not
reasonably likely that the jury based Townsend’s second
degree murder conviction upon the challenged instruction
because the jury was not instructed on any underlying felony,
was not instructed that an assault with a deadly weapon was
a felony that was inherently dangerous to human life, and was
not instructed on the elements of felony murder. When con-
sidered in the context of all the instructions provided to
Townsend’s jury, even if Townsend’s counsel had objected
and excluded the challenged instruction, “the probability that
the result would have been different is far from reasonable.”
Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000).
Because he has not shown that his counsel’s silence on this
issue prejudiced him, Townsend’s claim of ineffective assis-
tance fails.

                              III

   We AFFIRM the district court’s decision denying Town-
send’s 28 U.S.C. § 2244 habeas petition. The district court
correctly concluded that the California Superior Court’s rejec-
tion of Townsend’s jury instruction and ineffective assistance
claims was not contrary to or an unreasonable application of
clearly established federal law.

  AFFIRMED.
