Salgado

MEMORANDUM **

The facts and procedural history of this case are known to the parties, and we do not repeat them here.

Pursuant to 28 U.S.C. § 2254 , Petitioner Steve Salgado challenges the constitutionality of his conviction for two counts of first-degree murder, among other charges. We affirm the denial of the petition.

I.

The writ of habeas corpus “shall not be granted” on behalf of a person in state custody unless the state’s adjudication of his claim “(1) 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 (2) resulted in a decision that was based on an unreasonable determination of facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d).

Salgado contends that the habeas petition should be granted because the state trial court’s omission of CALJIC No. 8.31 from the jury instructions leaves open the possibility that the jury erroneously convicted him of first-degree murder on a finding of implied malice rather than express malice. The argument is unpersuasive.

Habeas relief is warranted on the basis of a…