Pierre Rushing v. Matthew Atchley ( 2023 )

FILED
NOT FOR PUBLICATION
MAR 8 2023
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PIERRE RUSHING, No. 20-16067
Petitioner-Appellant, D.C. No. 5:18-cv-02351-BLF
v.
MEMORANDUM*
MATTHEW ATCHLEY,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Beth Labson Freeman, District Judge, Presiding
Argued and Submitted January 26, 2023
San Francisco, California
Before: GOULD, RAWLINSON, and BRESS, Circuit Judges.
Pierre Rushing (Rushing) appeals the district court’s denial of his petition
for a writ of habeas corpus asserting that admission of evidence of an uncharged
shooting rendered his trial fundamentally unfair in violation of his due process
rights, and that jury instructions on an uncharged shooting lowered the
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
prosecution’s burden of proof in violation of Sullivan v. Louisiana, 508 U.S. 275(1993).1
“We review the denial of a Section 2254 habeas corpus petition de novo and
any underlying factual allegations for clear error. . . .” Patsalis v. Shinn, 47 F.4th
1092, 1097 (9th Cir. 2022) (citation omitted).
Relief on a § 2254 habeas claim is not warranted unless
[The state court’s] adjudication of the claim (1) resulted in
a decision that was contrary to, or involved and
unreasonable application of, clearly established federal law,
as determined by the Supreme Court of the United States;
or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.
28 U.S.C. § 2254(d).
1. Rushing cannot “argue for error under section 2254(d)(1) because there is
no clearly established [U.S. Supreme Court] law that addresses whether the
admission of a defendant’s . . . prior bad acts would violate due process.” Kipp v.
Davis, 971 F.3d 939, 951 n.8 (9th Cir. 2020). And, even if we consider Rushing’s
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Rushing also raises five uncertified issues, which we decline to address
because Rushing failed to “demonstrat[e] that jurists of reason could disagree with
the district court’s resolution of his constitutional claims or that jurists could
conclude the issues presented are adequate to deserve encouragement to proceed
further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citation omitted); see
also 9th Cir. Rule 22-1(e).
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argument under § 2254(d)(2), the California Court of Appeal’s harmless error
conclusion was not an unreasonable determination of the facts because it was based
on a reasonable review of the facts in the record. The court acknowledged that
Robert Green (Green) was the only eyewitness, was on felony probation, actively
used drugs, and initially described Rushing inaccurately. However, the court
considered this evidence in light of the evidence corroborating Green’s testimony,
including his prompt identification of Rushing in the first photo lineup that
included Rushing’s picture, and the “testimony of Carla Smith and a video
surveillance tape confirm[ing] Green’s version of the shooting.” The court also
discussed Rushing’s credibility issues suggesting consciousness of guilt, including
two false alibis given to police before testifying to a third alibi at trial. Unlike the
cases relied on by Rushing, the California Court of Appeal did not misstate any
evidence or omit contradictory evidence. See Kipp, 971 F.3d 952-53; see also
Zapata v. Vasquez, 788 F.3d 1106, 1117 (9th Cir. 2015).
2. The California Court of Appeal did not act contrary to clearly established
federal law, as determined by the U.S. Supreme Court, in concluding that the jury
instructions did not lower the State’s burden of proof. Considered as a whole, the
jury instructions conveyed that Rushing could only be convicted upon proof
beyond a reasonable doubt. See Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“It is
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well established that [a jury] instruction may not be judged in artificial isolation,
but must be considered in the context of the instructions as a whole and the trial
record. . . .”) (citation and internal quotation marks omitted). The instructions
included an admonition to “not consider [the evidence of the uncharged shooting]
for any other purpose except for the limited purpose of determining the defendant’s
credibility.” Finally, the trial court instructed the jury that the uncharged shooting
evidence
is only one factor to consider along with all the other
evidence. It is not sufficient by itself to prove that the
defendant is guilty of murder or that the allegations that the
defendant personally used a firearm or personally and
intentionally inflicted great bodily injury or death on
Dawonye Taylor have been proved. The People must still
prove the charge and allegations beyond a reasonable
doubt.
(Emphasis added).
AFFIRMED.
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