Giamella v. Henry

83 F. App'x 924

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 15, 2003
• Docket: No. 02-55698
• Status: Published

Opinion

MEMORANDUM

**

Harold Giamella, a California state prisoner, appeals pro se the district court’s judgment dismissing his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

The district court’s denial of a habeas petition is reviewed de novo, findings of fact are reviewed for clear error, and factual findings made by the state court are accorded a presumption of correctness. Moran v. McDaniel, 80 F.3d 1261, 1268 (9th Cir.1996).

We granted a certificate of appealability on the issue whether Giamella’s constitutional rights were violated by the trial court’s erroneous and conflicting jury instructions concerning the requisite mental state of malice.¹ After reviewing the entire record, we conclude that the district court’s finding that there was no reasonable likelihood that the jurors relied on the incorrect definition of malice in its finding of guilt, and that therefore there was no constitutional error, was not erroneous. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

Accordingly, the district court properly dismissed Giamella’s § 2254 petition because the state court’s decision was not contrary to, or an unreasonable application of, clearly established federal law. See 28 U.S.C. § 2254(d).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

1 . We decline to address issues outside the scope of the certificate of appealability. See Hiivala v. Wood, 195 F.3d 1098, 1102 (9th Cir.1999).