Byron R. Koering v. Terri Gonzalez

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1 Koering’s motion to expand the certificate of appealability to self-defense
and defense-of-property issues is DENIED. 9th Cir. R. 22-1(e). No “jurists of
reason could disagree with the district court’s resolution” of those issues. Miller-
El v. Cockrell, 537 U.S. 322, 327 (2003).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BYRON R. KOERING,
Petitioner - Appellant,
v.
TERRI GONZALEZ,
Respondent - Appellee.
No. 10-55585
D.C. No. 5:09-cv-00374-SJO-DTB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted March 5, 2013
Pasadena, California
Before: GOODWIN, WARDLAW, and GOULD, Circuit Judges.
Pursuant to a limited certificate of appealability, 1 Bryon Koering challenges
the district court’s denial of his habeas corpus petition. We affirm.
FILED
APR 23 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 Where, as here, the state court rejects a “federal claim without expressly
addressing that claim, a federal habeas court must presume that the federal claim
was adjudicated on the merits” for AEDPA purposes. Johnson v. Williams, 133 S.
Ct. 1088, 1096 (2013); Harrington v. Richter, 131 S. Ct. 770, 784–85 (2011).
Although habeas petitioners may overcome the presumption in some
circumstances, see Harrington, 131 S. Ct. at 785, Koering has not done so here.
-2-
Our habeas review is governed by the Antiterrorism and Effective Death
Penalty Act (“AEDPA”). AEDPA provides that if a federal habeas petitioner is in
custody pursuant to a state court judgment and the petitioner’s “claim . . . was
adjudicated on the merits in” state court proceedings, 2 our review is deferential. 28
U.S.C. § 2254(d). We may grant the writ only if: (1) the state adjudication “was
contrary to, or involved an unreasonable application of” clearly established federal
law, as determined by the Supreme Court; or (2) the state adjudication “was based
on an unreasonable determination of the facts in light of the evidence presented.”
Id. §§ 2254(d)(1)–(2).
The California Court of Appeal’s decision affirming the trial court’s
decision not to instruct on a lesser included offense does not satisfy either prong of
§ 2254(d). Koering was entitled to jury instructions regarding his theory of
defense, and the trial court’s instructions were consistent with his theory. See
Mathews v. United States, 485 U.S. 58, 63 (1988); California v. Trombetta, 467
U.S. 479, 485 (1984); Solis v. Garcia, 219 F.3d 922, 929 (9th Cir. 2000).

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-3-
Although Koering contends that the jury should have received instructions
regarding brandishing a firearm, see Cal. Penal Code § 417, he did not rely on a
brandishing theory of defense, and nothing in the record shows that he even sought
such an instruction.
Koering then argues that the jury should have received a brandishing-a-
firearm instruction because brandishing is a lesser included offense of assault with
a firearm. Id. § 245(a)(2). This argument runs counter to California authority
holding that section 417 brandishing is not a lesser included offense of section 245
assault. See People v. Steele, 99 Cal. Rptr. 2d 458, 462–65 (Ct. App. 2000);
People v. Escarcega, 117 Cal. Rptr. 595, 599–600 (Ct. App. 1974). But even
assuming arguendo that brandishing were a lesser included offense of assault, the
“failure of a state trial court to instruct on lesser included offenses in a non-capital
case does not present a federal constitutional question.” Windham v. Merkle, 163
F.3d 1092, 1106 (9th Cir. 1998); Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir.
1984).
AFFIRMED.

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