Vernon Shaw, III v. R. Kirkland , 460 F. App'x 699 ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT DEC 06 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VERNON SHAW, III, No. 09-17386
Petitioner - Appellant, D.C. No. 2:06-cv-00466-LKK-
CHS
v.
RICHARD J. KIRKLAND, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Argued and Submitted November 18, 2011
San Francisco, California
Before: FARRIS, NOONAN, and BEA, Circuit Judges.
Vernon Shaw appeals the district court’s denial of his petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The case is reviewed under the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
deferential standards set forth in the Antiterrorism and Effective Death Penalty Act
of 1996.
Shaw’s claim that the identifications of David and Darwin Brown were
unconstitutionally suggestive fails because he cannot show prejudice. See Brecht
v. Abrahamson, 507 U.S. 619, 637-38 (1993). Even if Darwin Brown had been led
by unconstitutional means to identify Shaw, there were three other identifications
in the case. That David Brown equivocated was a matter for the jury’s
consideration, as were Robert Horn’s bias and Clayton Brown’s inconsistent
descriptions of the suspect. See Manson v. Brathwaite, 432 U.S. 98, 116 (1977).
In light of these three identifications, the California court did not act unreasonably
in denying relief. See 28 U.S.C. § 2254(d).
Shaw’s ineffective assistance of counsel claim fails for largely the same
reasons. Shaw cannot show that the suppression of Darwin Brown’s identification
would have produced a different outcome in his case. See Kimmelman v.
Morrison, 477 U.S. 365, 373-74 (1986); Wilson v. Henry, 185 F.3d 986, 990 (9th
Cir. 1999). The state court’s denial of relief was reasonable. See 28 U.S.C. §
2254(d).
Shaw’s challenge to the jury instruction also fails. Neither federal law nor
California law required the jury instruction he requested. At most, the instruction
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would have discredited Robert Horn’s testimony. Shaw is unable to show that the
failure to give the instruction so infected the entire trial that the resulting
conviction violated due process. See Cupp v. Naughten, 414 U.S. 141, 147 (1973).
The state court was not unreasonable in so holding. See 28 U.S.C. § 2254(d).
Finally, Shaw’s argument that the imposition of consecutive sentences
violated his Sixth Amendment rights under Apprendi v. New Jersey, 530 U.S. 466(2000), and its progeny was foreclosed by the Supreme Court in Oregon v. Ice.
555 U.S. 160 (2009). In Ice, the Court upheld a state’s statutory scheme allocating
to judges the finding of facts necessary to impose consecutive sentences. Id. at
164, 168. Therefore, the California court did not act unreasonably in denying
relief. See 28 U.S.C. § 2254(d).
We therefore hold that Shaw is not entitled to federal habeas relief. The
district court’s denial of the petition is AFFIRMED.
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