                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 06 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CARLOS LUIS,                                     No.   16-55596

              Petitioner-Appellant,              D.C. No.
                                                 2:14-cv-08617-ODW-JPR
 v.

W. L. MONTGOMERY, Acting Warden,                 MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Otis D. Wright II, District Judge, Presiding

                      Argued and Submitted October 2, 2017
                              Pasadena, California

Before: RAWLINSON and N.R. SMITH, Circuit Judges, and KORMAN,**
District Judge.

      Carlos Luis appeals the denial of his petition for habeas corpus relief under

22 U.S.C. § 2254. We have jurisdiction under 22 U.S.C. § 2253(a), and we affirm.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
1.    Luis fails to identify any error in the instructions on first-degree murder and

second-degree fetal murder—the offenses on which he was convicted. Under these

circumstances, we can find no due process violation. Errors in state-law jury

instructions alone will not sustain a federal due process claim. Estelle v. McGuire,

502 U.S. 62, 71-72 (1991). Although he claims that error in the instructions on

lesser-included offenses infected his trial, he offers no explanation for how the

alleged errors relieved the government of its obligation to prove beyond a

reasonable doubt all elements of the offenses on which he was actually convicted.

Middleton v. McNeil, 541 U.S. 433, 437 (2004).

2.    Luis has not identified any independent due process right to have the jury

correctly instructed on all lesser-included offenses. The Ninth Circuit has long

rejected this type of habeas claim in non-capital cases, because the United States

Supreme Court has expressly left this issue undecided. See Solis v. Garcia, 219

F.3d 922, 928 (9th Cir. 2000).

      Even assuming such a claim existed, the California Court of Appeal found

no error in the disputed instructions. People v. Luis, B240741, 2013 WL 4223695,

at *11 (Cal. Ct. App. Aug. 13, 2013). Moreover, the California Court of Appeal

determined that any error was harmless beyond a reasonable doubt. Id. Luis has not

demonstrated that these conclusions were unreasonable. See Davis v. Ayala, 135 S.


                                          2
Ct. 2187, 2198-99 (2015) (holding that where a state court applies the harmless

beyond a reasonable doubt standard “a federal court may not award habeas relief

under § 2254 unless the harmlessness determination itself was unreasonable.”

(emphasis in original) (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007))).

      AFFIRMED.




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