
    Victor Manuel RODRIGUEZ, Petitioner-Appellant, v. Roy A. CASTRO, Warden, Respondent-Appellee.
    No. 03-55208. DC CV-00-02859-FMC.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted Jan. 10, 2005.
    Decided Feb. 2, 2005.
    Victor Manuel Rodriguez, Susanville, CA, pro se.
    Jerry Sies, Douglas Lee Wilson, AGCA — Office of the California Attorney General, Los Angeles, CA, for Respondent-Appellee.
    Before REINHARDT and CLIFTON, Circuit Judges, and WEINER, District Judge.
    
    
      
       The Honorable Charles R. Weiner, Senior United States District Judge for the Eastern District of Pennsylvania, sitting by designation.
    
   MEMORANDUM

1. While the state trial court unquestionably erred in including a second degree felony murder instruction, that error was clearly harmless since Rodriguez was convicted of first degree murder. As the inclusion of the uncharged theory of second degree murder could not have had a “substantial and injurious effect or influence in determining the jury’s verdict” on first degree murder, the use of harmless error analysis by the state appellate court was not an unreasonable application of the Supreme Court’s decision in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

2. We do not reach the uncertified issue of whether Rodriguez’s sentence violates the rule of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). See Olvera v. Giurbino, 371 F.3d 569, 572 (9th Cir.2004) (under AED-PA, our scope of review of habeas petitions is limited to those issues specified in the certificate of appealability).

AFFIRMED. 
      
       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 Ninth Circuit Rule 36-3.
     