Richard Leon Loughmiller v. KATHLEEN DICKINSON, Warden

* This disposition is not appropriate for publication and is not precedent
except as provided by 9 th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD LEON LOUGHMILLER,
Petitioner - Appellant,
v.
KATHLEEN DICKINSON, Warden,
Respondent - Appellee.
No. 11-17691
D.C. No. 2:09-cv-02094-JKS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, Senior District Judge, Presiding
Submitted April 17, 2013 **
San Francisco, California
Before: SCHROEDER, THOMAS and SILVERMAN, Circuit Judges.
Richard Loughmiller appeals the district court’s order denying his petition
for habeas corpus, which challenges Loughmiller’s California convictions for
attempted murder, first degree burglary, and discharging a firearm with gross
FILED
APR 19 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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negligence. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). We
affirm.
Assuming, without deciding, that Loughmiller received ineffective
assistance of counsel when his lawyer objected to a proposed jury instruction on
the lesser-included offense of attempted voluntary manslaughter, Loughmiller did
not suffer prejudice and is not entitled to relief. By convicting Loughmiller of
attempted murder, the jury necessarily concluded that he intended to kill Arthur
Weber. Thus, it is clear that the jury rejected Loughmiller’s claim that he merely
fired a “warning shot” to scare Weber. Moreover, as Loughmiller acknowledges,
attempted voluntary manslaughter also requires proof of intent to kill. See, e.g.,
People v. Montes, 5 Cal. Rptr. 3d 800, 802-03 (Cal. Ct. App. 2003). But
Loughmiller disclaimed any intent to kill Weber. Thus, had the jury accepted
Loughmiller’s theory that he fired a warning shot after Weber attacked him, it
would have lacked sufficient evidence to convict him of the lesser-included
offense of attempted voluntary manslaughter. Absent prejudice, Loughmiller is
not entitled to relief. Strickland v. Washington, 466 U.S. 668, 687 (1984).
AFFIRMED.

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