Kim MCADOO, Petitioner-Appellant, v. Roy CASTRO, Respondent-Appellee, 125 F. App'x 127

MEMORANDUM Petitioner Kim McAdoo appeals the district court order denying his habeas petition. We affirm. Because the parties are familiar with the factual and procedural history of the case, we will not recount it here. We review the district court’s decision to deny a 28 U.S.C. § 2254 habeas petition de novo. Taylor v. Maddox, 366 F.3d 992, 997 (9th Cir.2004). Alleged errors in state court jury instructions do not provide a basis for federal habeas relief unless the instructions infect the entire trial such that due process has been denied. Estelle v.

McGuire, 502 U.S. 62, 71-72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). To find constitutional error, we must find a “ ‘reasonable likelihood that the jury has applied the challenged instruction in a way’ that violates the Constitution.” Id. at 72, 112 S.Ct. 475 (quoting Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990)). Even if constitutional instructional error has occurred, we must still ascertain whether the constitutional error “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). After a careful examination of the record and the instructions as a whole, we conclude that given the separate aiding and abetting instruction and the absence of argument concerning the “natural and probable consequence” instruction, it was not reasonably likely that the jury relied on the natural and probable consequences jury instruction in reaching its verdicts. The giving of the “natural and probable consequence” instruction did not have a substantial or injurious effect or influence on the jury verdict. PETITION DENIED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.