                                                                            FILED
                            NOT FOR PUBLICATION                             JAN 26 2011

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



                            FOR THE NINTH CIRCUIT


SEBASTIAN RODRIGUEZ,                             No. 08-55870

               Petitioner - Appellant,           D.C. No. 2:07-cv-02732-DDP-AN

  v.
                                                 MEMORANDUM*
DEBRA DEXTER, Warden,

               Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Dean D. Pregerson, District Judge, Presiding

                      Argued and Submitted December 6, 2010
                               Pasadena, California

Before: B. FLETCHER, BERZON, and CALLAHAN, Circuit Judges.



       Sebastian Rodriguez appeals the denial of his petition for habeas relief

challenging his conviction for second degree murder. Rodriguez lost control of his

car and crossed a median into oncoming traffic, striking a motorcycle and killing



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
its driver. Rodriguez’ blood alcohol content was measured at 0.07% hours after

the accident, his blood tested positive for marijuana and methamphetamine, and

witnesses testified that he was driving over 100 miles per hour, dangerously

weaving in and out of traffic. At the time of the accident, Rodriguez was on

probation from a prior conviction for driving under the influence, and his mother

testified that after attending the required drug and alcohol education classes he told

her he knew it was dangerous to drive while under the influence of drugs or

alcohol.

      Rodriguez’ sole argument on appeal is that a jury instruction regarding a

violation of the basic speed law impermissibly relieved the prosecution of the

burden of proving that he subjectively appreciated the risk to human life. We

affirm the district court’s denial of his habeas petition.

      Rodriguez’ federal habeas petition was filed after the enactment of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. §

2254; therefore, AEDPA controls Rodriguez’ petition. Holley v. Yarborough, 568

F.3d 1091, 1097 (9th Cir. 2009). The district court’s decision to deny a 28 U.S.C.

§ 2254 habeas petition is reviewed de novo. Irons v. Carey, 505 F.3d 846, 850 (9th

Cir. 2007); Benitez v. Garcia, 495 F.3d 640, 643 (9th Cir. 2007).




                                            2
       Generally, “the fact that [a state 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, when reviewing a claim that an incorrect jury instruction

resulted in a violation of due process, the panel must decide “whether the ailing

instruction by itself so infected the entire trial that the resulting conviction violates

due process.” Id. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)).

Only then is a petitioner entitled to habeas relief. Id.

       Rodriguez argues that the “basic speed law” jury instruction created an

impermissible presumption regarding the third element of implied malice, that he

subjectively appreciated the danger his conduct created. A plain reading of the

basic speed law instruction shows that it did not create such a presumption. The

basic speed law instruction deals only with whether the act was dangerous to

human life, which is the second element of implied malice, not the defendant’s

subjective appreciation of the danger.

       Even if the trial court had erred by giving the basic speed law instruction,

any error was clearly harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993).

Under this standard, “errors are harmless if they do not have a ‘substantial and

injurious effect or influence in determining the jury’s verdict.’” Inthavong v.

Lamarque, 420 F.3d 1055, 1059 (9th Cir. 2005) (quoting Brecht, 507 U.S. at 637).


                                             3
The evidence that Rodriguez had a prior conviction for driving under the influence

of alcohol, had attended drug and alcohol education classes, and told his mother

that he knew it was dangerous to drive while under the influence of drugs and

alcohol renders any possible error in giving the instruction harmless.

      Because the basic speed law jury instruction does not create the presumption

of which Rodriguez complains, and because any error in giving the instruction was

harmless given the evidence, the district court’s judgment is AFFIRMED.




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