Timothy Shea v. Connie Gipson , 583 F. App'x 765 ( 2014 )

FILED
NOT FOR PUBLICATION JUL 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY KEVIN SHEA, ) No. 11-17899
)
Petitioner - Appellant, ) D.C. No. 2:09-cv-01209-JAM-TJB
)
v. ) MEMORANDUM*
)
CONNIE GIPSON, Warden, )
)
Respondent - Appellee. )
)
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted July 8, 2014**
San Francisco, California
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.
Timothy Kevin Shea appeals the district court’s denial of his petition for a
writ of habeas corpus. See 28 U.S.C. § 2254. We affirm.
(1) Shea first asserts that his constitutional rights were violated because
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without oral
argument. Fed. R. App. P. 34(a)(2).
the jury instructions regarding his crimes of lewd or lascivious acts committed
upon a child under the age of fourteen years1 allowed the jury to return a verdict of
guilt on a standard other than beyond a reasonable doubt.2 Applying AEDPA's
deferential standard of review, we hold that the state court did not unreasonably
apply clearly established Supreme Court Law. See 28 U.S.C. § 2254(d). Because
of a directive of the California Court of Appeal,3 which was designed to protect
defendants,4 the trial court combined both the substantive offense elements,5 and
the statute of limitations elements6 into one instruction, but carefully separated the
elements and burdens of persuasion applicable to each. The jury was instructed
that it had to find Shea guilty beyond a reasonable doubt on the former,7 but, for
the most part, only needed to apply a preponderance of evidence burden to the
1
See Cal. Penal Code § 288(a).
2
U.S. Const. amend. V.
3
People v. Ruiloba, 131 Cal. App. 4th 674, 31 Cal. Rptr. 3d 838 (2005).
4
Id. at 692–93, 31 Cal. Rptr. 3d at 849–50.
5
Cal. Penal Code § 288(a).
6
Cal. Penal Code § 803(f)(1).
7
That, of course, was the correct standard. See In re Winship, 397 U.S. 358,
364, 90 S. Ct. 1068, 1073, 25 L. Ed. 2d 368 (1970).
2
latter,8 which did not reduce the burden of persuasion regarding the crime itself.9
At worst, the instructional language may have injected some ambiguity,10 but, if so,
taken as a whole11 there was no “‘reasonable likelihood that the jury . . . applied the
challenged instruction in a way’ that violat[ed] the Constitution.”12
(2) Shea then asserts that trial counsel was ineffective when she failed to
raise the instruction issue at trial. See Cullen v. Pinholster, __ U.S. __, __, 131 S.
Ct. 1388, 1403, 179 L. Ed. 557 (2011); Murray v. Schriro, 745 F.3d 984, 1011–12
(9th Cir. 2014). Counsel was not ineffective. Not only was the issue obscure, but
also the instruction was designed to protect Shea’s right to a fair trial,13 and, as we
have already pointed out, did not actually alter the burden of persuasion.
Moreover, in the context of this case and the overwhelming evidence against Shea,
8
One part of the latter required proof by clear and convincing evidence. See
Cal. Penal Code § 803(f)(2)(C).
9
Cf. Cool v. United States, 409 U.S. 100, 104, 93 S. Ct. 354, 357, 34 L. Ed.
2d 335 (1972) (per curiam); Doe v. Busby, 661 F.3d 1001, 1023 (9th Cir. 2011).
10
See Rhoades v. Henry, 638 F.3d 1027, 1044–45 (9th Cir. 2011); Mejia v.
Garcia, 534 F.3d 1036, 1044–45 (9th Cir. 2008).
11
See Rhoades, 683 F.3d at 1045.
12
See Estelle v. McGuire, 502 U.S. 62, 72, 112 S. Ct. 475, 482, 116 L. Ed. 2d
385 (1991).
13
See Ruiloba, 131 Cal. App. 4th at 692–93, 31 Cal. Rptr. 3d at 849–50.
3
any error on counsel’s part failed to result in a constitutional violation. See
Lockhart v. Fretwell, 506 U.S. 364, 369 n.2, 113 S. Ct. 838, 842 n.2, 122 L. Ed. 2d
180 (1993). For the same reasons plus those unique to appellate representation,
appellate counsel was not ineffective either. See Smith v. Robbins, 528 U.S. 259,
285–86, 120 S. Ct. 746, 764, 145 L. Ed. 2d 756 (2000); Miller v. Keeney, 882 F.2d
1428, 1433–35 (9th Cir. 1989).
AFFIRMED.
4