Vu

MEMORANDUM **

Them Tony Vu was convicted by a California state jury of conspiracy to commit murder and attempted murder, among other crimes. After exhausting his direct appeals in the state courts, he filed a petition for federal habeas corpus pursuant to 28 U.S.C. § 2254 , alleging that the state court had committed constitutional error by (1) failing to instruct the jury sua sponte of the lesser included offenses of attempted voluntary manslaughter and conspiracy to commit voluntary manslaughter; (2) presenting insufficient evidence of intent to Mil to support a conviction for conspiracy to commit murder. The district court denied the petition, holding that the state court’s decision not to instruct on lesser offenses did not present a federal constitutional question and that the state court reasonably found that there was sufficient evidence of Vu’s guilt to support his conspiracy conviction. The district court further held that the state appellate court’s rulings on both these issues were not contrary to, or an unreasonable application of, clearly established federal law.

Vu now appeals. The district court granted a Certificate of Appealability on the issue of the omitted…