                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 19 2010

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




                            FOR THE NINTH CIRCUIT



ALFRED SERGIO NICKSON,                           No. 08-17629

              Petitioner - Appellant,            D.C. No. 2:06-cv-00608-JAM-
                                                 GGH
  v.

CHERYL PLILER, Warden, CA State                  MEMORANDUM *
Prison Sacramento,

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                       Argued and Submitted October 6, 2010
                             San Francisco, California

Before: HUG, RYMER and N.R. SMITH, Circuit Judges.

       Alfred Nickson appeals the district court’s denial of his habeas corpus

petition under 28 U.S.C. § 2254. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         To the extent that Nickson challenges the instructions as a matter of state

law, the claim is not cognizable on federal habeas review. See Estelle v. McGuire,

502 U.S. 62, 67-68 (1991). Beyond this, Nickson had fair warning that his conduct

could give rise to criminal liability on a conspiracy theory. See People v.

Kauffman, 92 P. 861, 862 (Cal. 1907); People v. Smith, 409 P.2d 222, 232 (Cal.

1966); see also People v. Belmontes, 755 P.2d 310, 334 (Cal. 1988) (“It is long and

firmly established that an uncharged conspiracy may properly be used to prove

criminal liability for acts of a coconspirator.”), overruled on other grounds, People

v. Doolin, 198 P.3d 11, 36 & n.22 (Cal. 2009). Accordingly, his due process rights

under Bouie were not offended. Bouie v. City of Columbia, 378 U.S. 347, 354

(1964). It follows that counsel was not ineffective for failing to pursue this line of

argument in state court. Gonzalez v. Knowles, 515 F.3d 1006, 1017 (9th Cir.

2008).

         Nor was it an unreasonable for the California Court of Appeal to determine

that the jury would not have been led by the instructions or the prosecutor’s

argument to convict Nickson of murder as the natural and probable consequence of




                                            -2-
the abandoned plot to rob Xiong’s Mini Market. Liability for murder was based on

attempted robbery of the victim, not the market.1

      AFFIRMED.




      1
         Nickson’s suggestion that there was insufficient evidence to support the
jury’s finding that the conspiracy extended beyond the plan to rob Xiong’s Mini
Market was not raised either on direct appeal or in his habeas petition to the district
court. As such, we decline to consider it now. Robinson v. Kramer, 588 F.3d
1212, 1215 (9th Cir. 2009); Belgrade v. Montana, 123 F.3d 1210, 1216 (9th Cir.
1997).

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