                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 21 2010

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




                            FOR THE NINTH CIRCUIT



GREGORY ALAN JOHNSON,                            No. 08-17210

              Petitioner - Appellant,            D.C. No. 3:06-cv-03257-SI

  v.
                                                 MEMORANDUM *
GARY SANDOR,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                      Argued and Submitted August 30, 2010
                            San Francisco, California

Before: B. FLETCHER, TALLMAN and RAWLINSON, Circuit Judges.

       Appellant Gregory Alan Johnson (Johnson) challenges the district court’s

denial of his habeas petition. Johnson contends that his constitutional rights were

violated because the jury instructions on felony murder and robbery allowed the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

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jury to find Johnson guilty even if he formed the intent to steal after the killing.

Because Johnson’s habeas petition was filed after 1996, his claim is governed by

the Antiterrorism and Effective Death Penalty Act (AEDPA). See Byrd v. Lewis,

566 F.3d 855, 859 (9th Cir. 2009).

      “Under AEDPA, [Johnson’s] petition can be granted only if the state court

determination resolving his claims was contrary to, or involved an unreasonable

application of, clearly established Federal law . . .” Id. (citation and internal

quotation marks omitted). It is clearly established federal law that “the fact that [a

jury] instruction was allegedly incorrect under state law is not a basis for habeas

relief.” Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Rather, “[t]he only

question for us is whether the ailing instruction by itself so infected the entire trial

that the resulting conviction violates due process.” Id. at 72 (citation and internal

quotation marks omitted). In making this determination, we consider the

instructions and trial record as a whole. See id.

      Applying Estelle, the California Court of Appeal’s denial of Johnson’s

instructional error claim was not an unreasonable application of governing

Supreme Court precedent because the instructions, considered as a whole,

adequately informed the jury regarding the intent required to convict Johnson of

felony murder. See id. Therefore, no viable due process claim could be made.


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      Because Johnson is unable to make the requisite showing that his remaining

claims “are debatable among jurists of reason, that a court could resolve the issues

in a different manner, or that the questions are adequate to deserve encouragement

to proceed further,” we decline to expand the certificate of appealability. Mendez

v. Knowles, 556 F.3d 757, 770-71 (9th Cir. 2009) (citation, alteration, and internal

quotation marks omitted).

      AFFIRMED.




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