MEMORANDUM2

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 *745States 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.