Gille v. Stewart

46 F. App'x 477

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 2002
• Docket: No. 01-17520; D.C. No. CV-00-00137-WDB
• Status: Published

Opinion

MEMORANDUM

**

Robert P. Gille, Jr., an Arizona state prisoner, appeals pro se the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for manslaughter. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de novo a district court’s denial of a habeas petition, Wildman v. Johnson, 261 F.3d 832, 836 (9th Cir.2001), and we affirm.

Gille contends that he was denied due process when the trial court refused to give the jury an instruction on negligent homicide, as a lesser included offense to manslaughter. However, under Arizona law, a person who creates a substantial and unjustifiable risk of causing the death of another, but is unaware of such risk solely by virtue of his or her voluntary intoxication, is guilty of manslaughter, not negligent homicide.¹ A.R.S. § 13-105(9)(c); see also State v. Fisher, 141 Ariz. 227, 248, 686 P.2d 750 (1984).

States possess primary authority for defining and enforcing criminal law, Engle v. Isaac, 456 U.S. 107, 128, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982), and Gille has not shown that the Arizona legislature’s decision to define manslaughter in this manner violates due process. See Montana v. Egelhoff, 518 U.S. 37, 43, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996)(plurality)(conclud-ing that state statutes restricting applicability of voluntary intoxication as evidence relevant to mens rea do not impinge upon a fundamental principle of justice).

Accordingly, the district court properly denied habeas relief. See 28 U.S.C. § 2254(d); Van Tran v. Lindsey, 212 F.3d 1143,1153-54 (9th Cir.2000).

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 . To the extent that Gille contends that the Arizona statute in question creates a presumption of guilt, he is mistaken. The statute merely provides an alternative method of proving recklessness; it does not relieve the state from its burden of proving an element of the offense.