Messer

MEMORANDUM **

Joseph Messer shot and killed his brother-in-law, David Michaud. In 2000, a jury convicted him of second-degree murder with a firearm enhancement and he was sentenced to 40 years to life in a California state prison. Messer exhausted his direct appeal in state court and now appeals the district court’s denial of his federal habeas corpus petition. He alleges that his due process rights were violated' (1) because the trial court improperly instructed the jury on the intent element of voluntary manslaughter, and (2) because the court failed to instruct the jury on the lesser included offense of involuntary manslaughter. 1 We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we affirm.

I

Messer first contends that the trial court’s jury instruction regarding voluntary manslaughter violated his constitutional right to due process. As the parties agree, the jury in his case was erroneously instructed that in order to find Messer guilty of voluntary manslaughter, they must find, beyond a reasonable doubt, that he possessed the intent to kill. See People v. Lasko, 23 Cal.4th 101, 109-10 , 96 Cal. Rptr.2d 441 , 999 P.2d 666 (2000) (holding that an intent to kill is not…