The trial court erred here in giving the felony-murder instruction which instructed the jury it could find petitioner guilty of first-degree murder provided he committed the crime of torture. In 1988, torture was not one of the five felonies enumerated in section 189 of the Penal Code, as triggering the felony-murder rule. As a result, the jury could have convicted petitioner of first-degree murder by reference to a predicate felony that did not exist, and that is contrary to clearly established federal law. Nonetheless, the Ninth Circuit found the error was harmless under Brecht v. Abrahamson (1993) 507 U.S. 619, 637, just as the state appellate court had found, because the jury necessarily had to have found malice. Here the murder was accomplished by strangulation, and “homicide by strangulation indicates malice.” The state court’s decision was not contrary to or an unreasonable application of clearly established federal law. Because the instructional error in giving a felony-murder instruction which told the jury it could find petitioner, guilty of first degree murder provided he committed the crime of torture was not prejudicial, counsel did not render ineffective assistance when he failed to object to the admittedly defective jury instruction. Because petitioner did not show a reasonable probability that had his counsel submitted evidence of his drug use, fatigue, and mental deficiencies at the hearing to invalidate his waiver under Miranda v. Arizona (1966) 384 U.S. 436, he would have been successful, his counsel did not render ineffective assistance. Petitioner failed to make a substantial showing that he had been denied a constitutional right. Accordingly, the Court of Appeals properly denied petitioner’s request for an expanded certificate of appealability.