Gongora

MEMORANDUM *

Manuel Gongora appeals the district court’s denial of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 . A Certificate of Appealability (COA) was issued with respect to whether the failure to define “criminal street gang” is fundamental error that denied Gongora due process of law. We affirm as to that issue, and decline to certify the other issues that he briefed.

Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), a petitioner must demonstrate that the state court’s adjudication of the merits resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or resulted in a decision that was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 70-73 , 123 S.Ct. 1166 , 155 L.Ed.2d 144 (2003). As Gongora did not object to the instructions, the Arizona Court of Appeals applied a “fundamental error” standard of review. This is consistent with federal law. See Neder v. United States, 527 U.S. 1, 9 , 119 S.Ct. 1827 , 144 L.Ed.2d 35 (1999). “It is the rare case in which an improper…