Moralez v. Brown

Ninth Circuit

Moralez v. Brown

170 F. App'x 470

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 8, 2006

DocketNo. 04-56712

StatusPublished

This text of 170 F. App'x 470 (Moralez v. Brown) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Moralez v. Brown, 170 F. App'x 470 (9th Cir. 2006).

Pincite

Opinion

MEMORANDUM

**

Petitioner Jorge Moralez appeals from the district court’s denial of his petition for habeas corpus. On de novo review, Leavitt v. Arave, 383 F.3d 809, 815 (9th Cir. 2004) (per curiam), cert. denied, — U.S. -, 125 S.Ct. 2540, 162 L.Ed.2d 277 (2005), we affirm.

The state trial court did not deprive Petitioner of due process by failing to instruct the jury on a theory of “imperfect self-defense,” People v. Flannel, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, 2 (1979), or attempted voluntary manslaughter. The evidence on which Petitioner relies (that rival gang members fired shots at the car in which he was riding) is consistent with the defense theory that Petitioner shot at the rival gang members because he reasonably believed that he was in danger. Accordingly, the jury was instructed on “pure self-defense.” By contrast, there was no evidence that, if believed by the jury, would have established that Petitioner honestly but unreasonably feared for his safety. In the absence of evidence to support his theory, the state court did not [471]*471deprive Petitioner of due process by failing to give the instruction. See Solis v. Garcia, 219 F.3d 922, 928-30 (9th Cir.2000) (per curiam) (affirming denial of a habeas petition in similar circumstances).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

Free access — add to your briefcase to read the full text and ask questions with AI

MEMORANDUM

**

Petitioner Jorge Moralez appeals from the district court’s denial of his petition for habeas corpus. On de novo review, Leavitt v. Arave, 383 F.3d 809, 815 (9th Cir. 2004) (per curiam), cert. denied, — U.S. -, 125 S.Ct. 2540, 162 L.Ed.2d 277 (2005), we affirm.

The state trial court did not deprive Petitioner of due process by failing to instruct the jury on a theory of “imperfect self-defense,” People v. Flannel, 25 Cal.3d 668, 160 Cal.Rptr. 84, 603 P.2d 1, 2 (1979), or attempted voluntary manslaughter. The evidence on which Petitioner relies (that rival gang members fired shots at the car in which he was riding) is consistent with the defense theory that Petitioner shot at the rival gang members because he reasonably believed that he was in danger. Accordingly, the jury was instructed on “pure self-defense.” By contrast, there was no evidence that, if believed by the jury, would have established that Petitioner honestly but unreasonably feared for his safety. In the absence of evidence to support his theory, the state court did not [471]*471deprive Petitioner of due process by failing to give the instruction. See Solis v. Garcia, 219 F.3d 922, 928-30 (9th Cir.2000) (per curiam) (affirming denial of a habeas petition in similar circumstances).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

Cite This Page — Counsel Stack

Bluebook (online)

170 F. App'x 470, Counsel Stack Legal Research, https://law.counselstack.com/opinion/moralez-v-brown-ca9-2006.

Opinion

Related

Cite This Page — Counsel Stack