Dejay Bailey v. J.N. Katavich , 504 F. App'x 588 ( 2013 )

FILED
NOT FOR PUBLICATION JAN 11 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEJAY BAILEY, No. 10-55938
Petitioner - Appellant, D.C. No. 2:09-cv-07842-SVW-
MLG
v.
J. N. KATAVICH, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Submitted January 9, 2013 **
Pasadena, California
Before: KOZINSKI, Chief Judge, McKEOWN and M. SMITH, Circuit Judges.
Dejay Bailey, a California state prisoner, appeals the district court’s denial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction for
second degree robbery. Reviewing de novo the district court’s decision, see
Shumway v. Payne, 223 F.3d 982, 984 (9th Cir. 2000), we affirm.
Bailey argues that the totality of the evidence was insufficient to show that
he intended to permanently deprive the victim of her property. The district court
properly determined that the California Court of Appeal’s decision on direct
review was not “contrary to,” or “an unreasonable application of, clearly
established Federal law.” 28 U.S.C. § 2254(d)(1). The undisputed facts amply
suffice to permit a jury to conclude that Bailey “dealt with [the license plate] in
such a way as to create an unreasonable risk of permanent loss,” thereby
demonstrating “an intent to steal.” People v. Zangari, 89 Cal. App. 4th 1436, 1446
(2001). Despite the arguably contrary evidence cited by Bailey, “the only question
under Jackson is whether [a jury] finding was so insupportable as to fall below the
threshold of bare rationality.” Coleman v. Johnson, 132 S. Ct. 2060, 2065 (2012)
(per curiam). Here, “the evidence at [Bailey]’s trial was not nearly sparse enough
to sustain a due process challenge under Jackson.” Id.AFFIRMED.
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