                                                                             FILED
                            NOT FOR PUBLICATION                               DEC 22 2009

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




                            FOR THE NINTH CIRCUIT



ROBERT C. CERVANTEZ,                              No. 06-56352

              Petitioner - Appellant,             D.C. No. CV-04-00625-SGL

  v.
                                                  MEMORANDUM *
C. K. PLILER,

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen G. Larson, District Judge, Presiding

                      Argued and Submitted December 9, 2009
                               Pasadena, California

Before: KOZINSKI, Chief Judge, TROTT and WARDLAW, Circuit Judges.




       Appellant Cervantez appeals the district court’s denial of his petition for a

writ of habeas corpus, alleging two errors.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       First, in connection with the lesser included offense of manslaughter, he

asserts that the state trial court erred in failing to instruct the jury that the State bore

the burden of disproving “heat of passion” beyond a reasonable doubt. This claim

fails because the failure of a state court to instruct on lesser included offenses does

not present a federal constitutional question cognizable on federal habeas review.

Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000). Also, the California Court of

Appeal held that the factual record was utterly devoid of any evidence that would

have supported a finding of “heat of passion.” This determination is well

supported by the record. Accordingly, the Court of Appeal correctly concluded

pursuant to Neder v. United States, 527 U.S. 1 (1999), that any instructional

omission was harmless under Chapman v. California, 386 U.S. 18 (1967).

Likewise, the omission of the instruction had no substantial and injurious effect or

influence on the jury. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993).

       Second, Cervantez argues that the removal by the state trial court of a sitting

juror who indicated that she would not follow the court’s orders deprived him of

his right to due process guaranteed by the Sixth and Fourteenth Amendments.

       The Court of Appeal found appropriate factual and legal cause for the trial

court’s decision. We agree. Moreover, there do not yet exist established rules

from the Supreme Court governing the handling of a recalcitrant juror.


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AFFIRMED.




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