                                                                           FILED
                           NOT FOR PUBLICATION                              AUG 04 2011

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




                           FOR THE NINTH CIRCUIT

VU TRONG NGUYEN,                                 No. 09-15186

              Petitioner-Appellant,              D.C. No. 04-04104-MHP

v.
                                                 MEMORANDUM
DARRELL G. ADAMS, Warden,

              Respondent-Appellee.




                   Appeal from the United States District Court
                      for the Northern District of California
                    Marilyn H. Patel, District Judge, Presiding

                       Argued and Submitted May 10, 2011
                            San Francisco, California



Before: B. FLETCHER and THOMAS, Circuit Judges, and GERTNER, District
Court Judge.**

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

       ** The Honorable Nancy Gertner, United States District Judge for the
District of Massachusetts, sitting by designation.



                                         -1-
       Vu Trong Nguyen (“Nguyen”), a California prisoner, appeals the district

court’s denial of his petition for a writ of habeas corpus on the grounds that his

defense counsel was ineffective for failing to request a heat of passion or voluntary

manslaughter jury instruction. Nguyen raised this claim before the California

Supreme Court in a state habeas petition, which was summarily denied.

       We review the district court’s denial of a habeas petition de novo. Lopez v.

Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000). If, however, a state court denies a

habeas petition on the merits (even in a summary decision), we review the petition

under the more deferential standard prescribed by the Antiterrorism and Effective

Death Penalty Act (“AEDPA”). See 28 U.S.C § 2254(d); Harrington v. Richter,

131 S. Ct. 770, 784 (2011). Under AEDPA, a federal court may grant a writ of

habeas corpus only if the state court’s decision on the merits was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or “was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). We find that the California

Supreme Court could have reasonably concluded that Nguyen’s trial counsel’s

performance, even if constitutionally deficient, did not prejudice him. We affirm

the district court.



                                          -2-
                                          I.

      We assume that the parties are familiar with the facts, and recite only those

necessary to our decision. Nguyen was charged with one count of first degree

murder and five counts of attempted murder for a shooting that occurred in a

residential garage on March 16, 1997. With no physical evidence linking Nguyen

to the crime scene, the government focused on Nguyen’s motive, introducing

evidence that the victims were members of a rival gang and that Nguyen’s brother

had been wounded (presumably by members of the rival gang) mere hours before

the shooting. Though several individuals identified Nguyen as the shooter a few

days after the incident, most recanted before or at the trial. Nguyen produced two

alibi witnesses who testified that he was at the hospital with his brother when the

shooting took place.

      At the end of the trial, the trial court held a charge conference and asked

defense counsel, “[Y]ou’re not asking for any L-I-Os [lesser-included offenses]

except murder second for Count One?” to which he responded “Right.” The trial

judge then said, “Okay. And I understand your reasoning on that based on what’s

transpired so far.”

      The court gave the following instruction to the jury:

             If you find that the killing was preceded and
             accompanied by a clear, deliberate intent on the part of

                                   -3-
             the defendant to kill, which was the result of deliberation
             and premeditation, so that it must have been formed upon
             preexisting reflection and not under a sudden heat of
             passion or other condition precluding the idea of
             deliberation, it is murder of the first degree.

(emphasis added).

      The instruction approved by the trial court and counsel did not indicate that,

under California law, one who intentionally kills “in the heat of passion” lacks

malice and is guilty of voluntary manslaughter, not murder. C AL. P ENAL C ODE §

192(a). If there is substantial evidence of heat of passion, a voluntary

manslaughter instruction is required in California even if it is against the

defendant’s wishes and regardless of the trial tactics that the defendant has

pursued. People v. Breverman, 960 P.2d 1094, 1100–01 (Cal. 1998).

                                          II.

      To prevail on an ineffective assistance of counsel claim, the petitioner must

show not only that his counsel’s performance fell below objective standards of

reasonableness, but also that there is a reasonable probability that absent the errors

the result of the proceedings would have been different. Strickland v. Washington,

466 U.S. 668, 688, 694 (1984). Under AEDPA our review of an ineffective

assistance of counsel claim is “doubly” deferential. Harrington, 131 S. Ct. at 788

(internal quotation marks and citation omitted).



                                          -4-
      Where, as here, the state court issues a summary denial on the merits, federal

courts must attempt to deduce any reasonable basis for the state court’s decision.

Harrington, 131 S. Ct. at 784, 786. If the state court could have denied Nguyen’s

claim through a reasonable application of Strickland’s prejudice prong, we may not

grant the writ. Id. at 788. Therefore, we must ask whether the California Supreme

Court could reasonably conclude that Nguyen has not shown a “reasonable

probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland, 466 U.S. at 694.

      It would have been reasonable for the California Supreme Court to conclude

that, even if the jury had been given a voluntary manslaughter instruction, there

was no reasonable probability that the jury would have found Nguyen guilty of

voluntary manslaughter. The evidence indicated that there was a pre-existing gang

rivalry between Nguyen and the victims and that the shooting was planned—albeit

in a rapid manner. Furthermore, the shooter paused to reload, suggesting that the

shooting was deliberate rather than in the heat of passion. We recognize that there

is strong evidence suggesting heat of passion. But in a case with reasonable

arguments on both sides, we are bound under AEDPA to defer to the state court’s

judgment. Harrington, 131 S. Ct. at 792.




                                          -5-
      In sum, because the California Supreme Court could have reasonably denied

Nguyen’s habeas petition on the grounds that trial counsel’s failures did not

prejudice him, the district court’s denial of habeas relief is AFFIRMED.

      We deny Nguyen’s motion to expand the certificate of appealability and do

not address the uncertified issues he raised in his opening brief. See Towery v.

Schriro, 641 F.3d 300, 311 (9th Cir. 2010).




                                         -6-
