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Elmore v. Bunnell

*fn* submitted: May 25, 1993.

MICHAEL GENE ELMORE, PETITIONER-APPELLANT,
v.
B.J. BUNNELL, WARDEN, ET AL., RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the Northern District of California. D.C. No. CV-91-826-RFP. Robert F. Peckham, District Judge, Presiding

Before: Hug, Wiggins, and Thompson, Circuit Judges.

MEMORANDUM

Michael Gene Elmore (Elmore) appeals the district court's denial of his habeas petition. He is a California state prisoner convicted of first degree murder, three counts of forcible rape, three counts of lewd and lascivious conduct with a minor, one count of penetration with a foreign object and one count of false imprisonment. He is serving a forty-six year sentence.

Elmore challenges the constitutionality of his conviction contending that: (1) he was denied due process because the trial transcripts for several days of voir dire are missing and prosecutorial misconduct occurred during that period; (2) he was denied due process because the trial court issued improper jury instructions regarding voluntary intoxication and self-defense; and (3) there was insufficient evidence to support his first degree murder conviction.

The district court had jurisdiction under 28 U.S.C. § 2254. We have jurisdiction over this timely appeal pursuant to 28 U.S.C. § 2253. We affirm.

Discussion

We review de novo the district court's denial of Elmore's petition for habeas corpus. Prantil v. State of Cal., 843 F.2d 314, 316 (9th Cir.), cert. denied, 488 U.S. 861 (1988).

A. Prosecutorial Misconduct

Elmore's first contention is barred because he failed to raise this claim in the California appellate courts. See Engle v. Isaac, 456 U.S. 107, 129 (1982); see also Wainwright v. Sykes, 433 U.S. 72, 86-87 (1977). "When a procedural default bars state litigation of a constitutional claim, a state prisoner may not obtain federal habeas relief absent a showing of cause and actual prejudice." Engle, 456 U.S. at 129.

On direct appeal, Elmore failed to assert his claim that prosecutorial misconduct occurred during several days of unrecorded voir dire. He argued only that there was a "potential" that reversible error occurred during the unrecorded voir dire. Because he failed to raise this claim on direct appeal, he cannot now assert it in the state court. In re Walker, 518 P.2d 1129, 1134 (Cal. 1974) (defendant cannot raise claims in petition for habeas when they could have been, but were not, raised in timely appeal from conviction); see also In re Jackson, 835 P.2d 371, 375 n.2 (Cal. 1992). Therefore, absent cause and prejudice, Elmore is barred from raising his claim in this court. See Engle, 456 U.S. at 129.

The district court issued an order granting Elmore leave to demonstrate cause and prejudice. In his response, he argued that prejudice occurred because the prosecutor had mentioned his past criminal history. However, he failed to raise that claim on appeal to the state court. Indeed, Elmore conceded on direct appeal that he was unaware of any error occurring during the relevant portion of voir dire. Moreover, he has made no effort throughout the proceedings to reconstruct the record and has offered no excuse for his failure to do so. After reviewing his response, we agree with the district court that he has failed to establish the requisite "cause and prejudice."

B. Improper Jury Instructions

1. Self-Defense

Elmore argues that the state trial court erred because although it instructed the jury that an honest but unreasonable belief in the necessity to defend against imminent peril is a defense to murder, it failed to instruct the jury that such an ...


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