Malcolm P. COLEMAN, Petitioner-Appellant, v. Diane BUTLER, Warden; Attorney General for the State of California, Respondents-Appellees, 256 F. App'x 901

MEMORANDUM Malcolm P. Coleman appeals the district court’s denial of his petition for habeas corpus relief. See 28 U.S.C. § 2254. We affirm. Coleman asserts that in instructing the jury, the state trial court erred. He, therefore, claims that he was denied due process of law because he might have been found guilty by a preponderance of the evidence rather than beyond a reasonable doubt. See Gibson v. Ortiz, 387 F.3d 812, 820 (9th Cir.2004). We disagree. The instructions may not have been perfect, but imperfect is not the equivalent of unconstitutional.

We must, of course, consider the instructions as a whole and determine whether the state court determination that there was no reasonable likelihood that the jury’s verdict was substantially and injuriously affected or influenced by the imperfect instructions was objectively unreasonable. On this record, it was not. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3. . Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 1832, 158 L.Ed.2d 701 (2004) (per curiam); see also United States v. Munoz, 233 F.3d 1117, 1130 (9th Cir.2000). .

See Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 1198, 108 L.Ed.2d 316 (1990); see also Lankford v. Arave, 468 F.3d 578, 585 (9th Cir.2006), cert denied, - U.S. -, 128 S.Ct. 206, 169 L.Ed.2d 246 (2007); Allen v. Woodford, 395 F.3d 979, 996 (9th Cir.2005). . See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 1722, 123 L.Ed.2d 353 (1993); see also Calderon v. Coleman, 525 U.S. 141, 145-46, 119 S.Ct. 500, 502-03, 142 L.Ed.2d 521 (1998) (per curiam). . See Middleton, 541 U.S. at 436, 124 S.Ct. at 1832. . We note that this case is quite unlike Gibson, 387 F.3d at 822-24.

Here the jury was never told (explicitly or otherwise) that it could find Coleman guilty on any standard less than beyond a reasonable doubt.