Teklezgi Gebrezgiabher v. Mike C. Kremer

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TEKLEZGI GEBREZGIABHER,
Petitioner - Appellant,
v.
MIKE C. KREMER,
Respondent - Appellee.
No. 09-17377
D.C. No. 5:06-cv-07864-RMW
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Ronald M. Whyte, Senior District Judge, Presiding
Argued and Submitted December 3, 2012
San Francisco, California
Before: HAWKINS, TASHIMA, and MURGUIA, Circuit Judges.
Petitioner Teklezgi Gebrezgiabher (“Gebrezgiabher”) appeals the district
court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his second
degree murder conviction. We affirm.
FILED
DEC 12 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 Were we to find constitutional error, we would then determine whether, under
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993), that error was prejudicial. Pulido,
629 F.3d at 1012. As we find no constitutional error, we do not reach the question of
prejudice.
2
Although the state trial court erred in this case by instructing the jury that
voluntary manslaughter requires intent to kill, see People v. Lasko, 999 P.2d 666,
670–72 (Cal. 2000) (voluntary manslaughter does not require intent to kill), the
question we ask on habeas review is whether that error was constitutional in nature,
Pulido v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010). 1
Constitutional error requires a showing that the flawed instruction “so infected
the entire trial that the resulting conviction violates due process.” Estelle v. McGuire,
502 U.S. 62, 72 (1991) (citation omitted) (internal quotation marks omitted). The
defective instruction “must be considered in the context of the instructions as a
whole.” Id. at 72–73 (citation omitted).
Here, in addition to properly instructing the jury on second degree murder, the
judge instructed that “[t]o establish that a killing is murder and not manslaughter,” the
state had the burden of proving beyond a reasonable doubt that the killing was not
done in the heat of passion, upon a sudden quarrel, or in unreasonable self-defense.
Assuming, as we must, that the jury followed the instructions it was given, Doe
v. Busby, 661 F.3d 1001, 1017 (9th Cir. 2011) (“A habeas court must presume that

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3
jurors follow the jury instructions.”) (citation omitted), the verdict establishes that the
jury necessarily found beyond a reasonable doubt that Gebrezgiabher did not act in
the heat of passion, upon a sudden quarrel, or in unreasonable self-defense. As a
result, the jury could not have convicted him of voluntary manslaughter even absent
the flawed instruction. The error, therefore, was not constitutional.
AFFIRMED.

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