Shuler

*432 MEMORANDUM *

California state prisoner David Shuler appeals the district court’s denial of his federal habeas corpus petition as limited by 28 U.S.C. § 2254 . Shuler’s petition challenged his 1988 jury trial conviction of second degree murder for the death caused when Shuler, while intoxicated, drove his car into the victim’s vehicle. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and, after de novo review, see McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir.1999), we affirm.

Shuler’s contention that the trial court’s denial of his motion for change of venue resulted in an unfair trial lacks merit. After reviewing the record, we conclude that Shuler failed to show either presumed or actual prejudice. See Harris v. Pulley, 885 F.2d 1354, 1361, 1363 (9th Cir.1988).

The trial court’s failure to sua sponte give the jury an instruction on “unconsciousness” did not violate Shuler’s due process right to a fair trial. The state court gave an instruction that would have permitted the jury to decide that Shuler lacked the mental state required for conviction of second degree murder because of an alcoholic blackout if they believed Dr. Globus’ testimony. Thus, there was no due…