Nick J. Garduno v. GAIL LEWIS, Warden

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICK J. GARDUNO,
Petitioner–Appellant,
v.
GAIL LEWIS, Warden,
Respondent–Appellee.
No. 08-15271
D.C. No. CV-02-05806-JSW
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted December 7, 2009
San Francisco, California
Before: SCHROEDER and CALLAHAN, Circuit Judges, and LUCERO, ** Circuit
Judge.
Nick J. Garduno appeals the district court’s denial of his 28 U.S.C. § 2254
petition for writ of habeas corpus. Exercising jurisdiction under § 2253, we affirm.
FILED
FEB 16 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Garduno was convicted in California state court of attempted murder, assault
with a firearm, and inflicting corporal injury upon a spouse. On December 12,
2002, he filed a pro se habeas petition in federal court, asserting there was
insufficient evidence of intent to kill. Approximately one year later, Garduno filed
through counsel an amended petition advancing three new claims. The district
court dismissed Garduno’s newly-added claims as time-barred, and rejected his
sufficiency of the evidence claim on the merits.
Garduno timely appealed. This court granted a certificate of appealability
(“COA”) on the questions of whether the district court properly dismissed
Garduno’s three new claims as untimely and whether these claims are meritorious.
With respect to the issues for which we granted a COA, Garduno’s counsel
has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), stating that
he is unable to find support for Garduno’s appeal. Garduno did not file a pro se
brief in response. We remind counsel that Anders “established a prophylactic
framework that is relevant when, and only when, a litigant has a previously
established constitutional right to counsel.” Pennsylvania v. Finley, 481 U.S. 551,
555 (1987). Because “there is no constitutional right to effective assistance of
counsel in habeas corpus cases,” Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir.
1996), counsel for a habeas petitioner cannot rely on the Anders procedure.

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Nevertheless, we have independently reviewed the record in this case and
agree that the claims on which we granted a COA lack merit. Even if those claims
were timely or could be saved by equitable tolling, they would not entitle Garduno
to relief. To obtain habeas relief based on erroneous jury instructions, a petitioner
must show the instruction errors “so infected the entire trial that the resulting
conviction violates due process, thus rendering the trial fundamentally unfair.”
Townsend v. Knowles, 562 F.3d 1200, 1209 (9th Cir. 2009) (quotation omitted).
Garduno claimed he was denied due process because the jury was instructed
that the lesser included-offense of attempted voluntary manslaughter requires
intent to kill. The California Supreme Court has held that voluntary manslaughter
does not require an intent to kill. People v. Lasko, 999 P.2d 666, 672 (Cal. 2000).
However, Garduno’s jury was also instructed that it could not convict on the
attempted murder count unless the government proved that the act constituting an
attempt “was not done in the heat of passion or upon a sudden quarrel.” Because
the jury necessarily found Garduno was not acting in the heat of passion, it could
not have convicted him of attempted voluntary manslaughter regardless of the
erroneous intent instruction.
Garduno also argued the instructions impermissibly required the jury to find
him not guilty of attempted murder unanimously before it could consider a lesser

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included charge. This claim is foreclosed by United States v. Jackson, 726 F.2d
1466, 1469 (9th Cir. 1984).
Garduno further contended that his counsel was ineffective for failing to
raise these jury instruction issues. Because the underlying arguments lack merit,
counsel was not ineffective for failing to raise them. See Boag v. Raines, 769 F.2d
1341, 1344 (9th Cir. 1985).
Finally, Garduno requests this court expand the grant of a COA to include
his sufficiency of the evidence claim. To obtain a COA, Garduno must show “that
reasonable jurists could debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (quotations omitted). Garduno has not satisfied this standard;
the evidence presented at trial was more than sufficient to permit a rational trier of
fact to find that Garduno intended to kill his victim. See Jackson v. Virginia, 443
U.S. 307, 326 (1979).
AFFIRMED.

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