
    Joshua Eric SWINDELL, Petitioner-Appellant, v. Gail LEWIS, Warden, Attorney General of the State of California, Respondents-Appellees.
    No. 00-55578.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Dec. 8, 2000.
    
    Decided Jan. 17, 2001.
    Before JAMES R. BROWNING, PREGERSON, and BEEZER, Circuit Judges.
    
      
      . The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Petitioner Joshua Eric Swindell (“Swin-dell”) appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition, in which he seeks relief from his state court conviction for the second degree murder of Keith Ogden. Swindell argues that he is entitled to habeas relief because the trial judge’s refusal to instruct the jury on the lesser included offense of involuntary manslaughter, a defense theory of the case, violated Swindell’s right to due process.

A criminal defendant is entitled to adequate instructions on a defense theory of the case “provided that [the defense theory] is supported by law and has some foundation in the evidence.” United States v. Mason, 902 F.2d 1434, 1438 (9th Cir.1990). Because we find that Swindell’s theory of the case had no foundation in the evidence, we conclude that the trial judge did not commit error, much less constitutional error, in refusing to instruct the jury on involuntary manslaughter.

AFFIRMED.

Judge JAMES R. BROWNING concurs in the judgment. 
      
      . This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
     