Gary Bortis v. G. Swarthout , 672 F. App'x 754 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 05 2017
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
GARY ALLEN BORTIS, No. 14-15833
Petitioner - Appellant, D.C. No. 2:11-cv-03186-KJM-
EFB
v.
G. SWARTHOUT, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Argued and Submitted March 17, 2016
San Francisco, California
Before: W. FLETCHER, RAWLINSON, and HURWITZ, Circuit Judges.
Petitioner-Appellant Gary Allen Bortis (Bortis), who was convicted of first-
degree murder with use of a firearm and eight counts of illegal weapons
possession, appeals the district court’s denial of his habeas petition filed pursuant
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
to 28 U.S.C. §2254. He asserts that he was denied due process when the trial court
failed to instruct the jury on imperfect self-defense.
There is no Supreme Court precedent establishing that a state trial court is
required to instruct on lesser included offenses in noncapital cases. See Beck v.
Alabama, 447 U.S. 625, 638 (1980) (discussing capital cases); see also, United
States v. Rivera-Alonzo, 584 F.3d 829, 834 n.3 (9th Cir. 2009) (“In the context of a
habeas corpus review of a state court conviction, we have stated that there is no
clearly established federal constitutional right to lesser included instructions in
non-capital cases. . . .”) (citation omitted). Failure to instruct on imperfect self-
defense was not of constitutional magnitude. See Bashor v. Riley, 730 F.2d 1228,
1240 (9th Cir. 1984) (“Failure of a state court to instruct on a lesser offense fails to
present a federal constitutional question. . .”) (citation omitted). Therefore, the
California Court of Appeal properly applied the Watson1 state-law harmless error
standard to this state-law obligation. See Bains v. Cambra, 204 F.3d 964, 975 (9th
Cir. 2000).
As the Court of Appeal observed, Stein was convicted of being an accessory
after the fact, which indicated that the jury rejected Bortis’ testimony that he
1
People v. Watson, 46 Cal. 2d 818, 836 (Cal. 1956) (concluding that
instructional error is not subject to reversal unless an examination of the entire
record establishes a reasonable probability that the error affected the outcome).
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believed the victim was choking his companion Maryanne Stein (Stein). In
addition, the jury had an opportunity to hear Bortis and Stein discussing their
version of events on a recorded jailhouse phone call. There was no due process
violation. See Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988) (explaining
that a due process violation arises when an erroneous instruction “infect[s] the
entire trial”).
AFFIRMED.
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