                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 19 2010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



SAMUEL ESPINOZA,                                 No. 07-55121

             Petitioner - Appellant,             D.C. No. CV-05-02724-GPS

  v.
                                                 MEMORANDUM *
SCOTT KERNAN,

             Respondent - Appellee.



                   Appeal from the United States District Court
                       for the Central District of California
                   George P. Schiavelli, District Judge, Presiding

                      Argued and Submitted January 11, 2010
                               Pasadena, California

Before: GOODWIN, CANBY and O’SCANNLAIN, Circuit Judges.

       Samuel Espinoza appeals the denial of his habeas corpus petition

challenging his state conviction for second-degree murder. This court granted a

certificate of appealability limited to two issues: (1) whether Espinoza’s due

process rights were violated when the trial court misadvised the jury regarding the


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
elements of voluntary manslaughter, and (2) whether there was insufficient

evidence to convict him of second-degree murder. 28 U.S.C. § 2253(c)(3). Both

issues concern state law and were thoroughly analyzed and decided by the

California Court of Appeal with review denied by the California Supreme Court.

      Because state-court factual determinations “are presumed correct absent

clear and convincing evidence to the contrary . . . a decision adjudicated on the

merits in state court and based on a factual determination will not be overturned on

factual grounds unless objectively unreasonable in light of the evidence presented

in the state-court proceeding.” Miller-El v. Cockrell, 537 U.S. 322, 340 (2003)

(citations omitted). The district court determined that Espinoza was not entitled to

federal habeas corpus relief because the state trial court’s instructional error was

not prejudicial to him. The trial evidence showed that it was reasonable for the

jury to conclude that Espinoza was not acting in self defense, defense of his

brother, or heat of passion under state law but that his actions showed an intent to

kill, qualifying for second-degree murder. The instructional error did not have a

“substantial and injurious effect or influence in determining the jury’s verdict” and

does not constitute a due process violation requiring reversal. Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (citation and internal quotation marks

omitted).


                                           2
      The sufficiency of the evidence to support Espinoza’s second-degree murder

conviction survives review if “after viewing the evidence in the light most

favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.” Jackson v. Virginia,

443 U.S. 307, 319 (1979). The return of Espinoza and his brother to the residence

of the victim, Alex Perez, with loaded guns to redress disrespectful conduct

between rival gang associates showed them to be aggressors and evidenced an

intent to use deadly force. A rational juror could find that Espinoza did not act in

the heat of passion or in self defense or defense of his brother when he shot and

killed Perez. Espinoza has not proved that the state court’s application of the

Jackson standard was “objectively unreasonable.” Juan H. v Allen, 408 F.3d 1262,

1275 n.13 (9th Cir. 2005) (citation and internal quotation marks omitted).

AFFIRMED.




                                          3
