Jose Solorio v. Mike Evans

FILED
NOT FOR PUBLICATION SEP 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE PIEDAD SOLORIO, No. 10-15702
Petitioner - Appellant, D.C. No. 3:06-cv-04641-MHP
v.
MEMORANDUM *
MIKE EVANS, Warden; J. DOVEY,
Director, California Department of
Corrections and Rehabilitation,
Respondents - Appellees.
Appeal from the United States District Court
for the Northern District of California
Marilyn H. Patel, Senior District Judge, Presiding
Submitted August 29, 2011 **
San Francisco, California
Before: FISHER and RAWLINSON, Circuit Judges, and WRIGHT, District
Judge.***
*
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).
***
The Honorable Otis D. Wright, II, District Judge for the U.S. District
Court Central District of California, sitting by designation.
Petitioner Jose Solorio challenges the district court’s denial of his petition
for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Solorio contends that he
was denied due process because the trial court declined to instruct the jury that the
prosecution had the burden of disproving Solorio acted in self-defense.
Viewing the instructions as a whole, we hold that no “substantial and
injurious effect or influence on the verdict” occurred. Pulido v. Chrones, 629 F.3d
1007, 1012 (9th Cir. 2010) (citation omitted). Indeed, the trial court repeatedly
reiterated the prosecution’s burden to prove Solorio’s guilt beyond a reasonable
doubt. Thus, the California Court of Appeal’s rejection of Solorio’s due process
claim was not “contrary to,” nor did it “involve[] an unreasonable application of,
clearly established Federal law . . . .” 28 U.S.C. § 2254(d)(1), see also Pulido, 629
F.3d at 1012 (explaining that habeas relief is not appropriate unless the asserted
instructional error has “a substantial and injurious effect or influence on the verdict
. . .”).
AFFIRMED.
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