Derek Fulbright v. D. Runnels , 362 F. App'x 892 ( 2010 )

FILED
NOT FOR PUBLICATION JAN 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEREK TODD FULBRIGHT, No. 08-55369
Petitioner - Appellant, D.C. No. 2:05-cv-04280-DDP
v.
MEMORANDUM *
D. L. RUNNELS, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding
Submitted January 11, 2010 **
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
California state prisoner Derek Todd Fulbright appeals from the district
court’s order denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction
pursuant to 28 U.S.C. § 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th 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).
EOH/Research
Fulbright contends that the trial court’s failure to give sua sponte a jury
instruction on what constituted a lawful arrest was a violation of his due process
rights. Even assuming that the trial court should have given the instruction,
Fulbright has not shown that he was prejudiced, in light of the evidence and the
instructions as a whole. See Mendez v. Knowles, 556 F.3d 757, 768 (9th Cir.
2009); see also Henderson v. Kibbe, 431 U.S. 145, 155 (1977) (stating that
“omission, or an incomplete instruction, is less likely to be prejudicial than a
misstatement of the law”).
Fulbright next contends that his trial counsel provided ineffective assistance
by agreeing to an additional special jury instruction that allegedly negated his
defense of resisting unlawful arrest. Fulbright has not demonstrated a “reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
694 (1984).
The state court’s rejection of these claims was neither contrary to, nor an
unreasonable application of, clearly established federal law. See 28 U.S.C.
§ 2254(d)(1).
AFFIRMED.
EOH/Research 2 08-55369