James

MEMORANDUM

Timothy A. James appeals the district court’s denial of his habeas corpus petition. He argues that an extra jury instruction on simple malice prejudiced his conviction for second-degree murder.

In 2003, James shot and killed Robert Rodela near the Pico-Union area apartment complex where James lived. He was convicted of second-degree murder. The California Court of Appeal affirmed his conviction and held that the trial court’s use of an extra jury instruction on simple malice was harmless error. The California Supreme Court summarily denied his petition for review. James then filed a federal petition for a writ of habeas corpus, which the district court denied on the ground that it was absolutely certain that the jury did not convict him of second-degree murder based on the extra instruction.

The only issue in this appeal is whether James was prejudiced by the extra jury instruction on malice. James is not entitled to relief unless “[he] can establish that the error resulted in actual prejudice.” Ho v. Carey, 332 F.3d 587, 595 (9th Cir.2003) (quotation marks omitted). We assess the “prejudicial impact of constitutional error in a state-court criminal trial” under the…