Bruce Casaway v. Kenneth Quinn , 389 F. App'x 666 ( 2010 )

FILED
NOT FOR PUBLICATION JUL 26 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE MICHAEL CASAWAY, No. 08-35335
Petitioner - Appellant, D.C. No. 3:07-cv-05191-RJB
v.
MEMORANDUM*
KENNETH QUINN,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert J. Bryan, Senior District Judge, Presiding
Argued and Submitted July 16, 2010
Seattle, Washington
Before: GRABER and PAEZ, Circuit Judges, and BURNS, District Judge.**
Bruce Michael Casaway appeals the district court’s denial of his 28 U.S.C.
§ 2254 petition for habeas corpus relief. We have jurisdiction under 28 U.S.C.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Larry A. Burns, United States District Judge for the
Southern District of California, sitting by designation.
§ 2253. We review de novo the district court’s denial of the petition, Gonzalez v.
Brown, 585 F.3d 1202, 1206 (9th Cir. 2009), and we affirm.
Contrary to Casaway’s assertions, the state courts did not look to the facts
underlying his prior out-of-state convictions in concluding that those convictions
qualified as strikes under the state’s Persistent Offender Accountability Act.
Rather, the state appeals court reached this conclusion solely by comparing the
elements of Casaway’s out-of-state convictions to the elements of strike-eligible
Washington offenses. Because this legal determination that the offenses were
comparable involved no fact-finding, it did not violate Casaway’s Sixth
Amendment right to have facts that could result in an increased penalty proven to a
jury beyond a reasonable doubt. See Apprendi v. New Jersey, 530 U.S. 466, 490
(2000). Moreover, if the state court erred in concluding that Casaway’s out-of-
state convictions were legally comparable to Washington strike-eligible offenses,
that error was one of state law and thus is not cognizable on federal habeas review.
See Rhoades v. Henry, 596 F.3d 1170, 1196 (9th Cir. 2010).
We construe Casaway’s additional argument that his trial counsel was
unconstitutionally ineffective for failing to seek an instruction directing the jury to
evaluate his purported accomplice’s testimony with caution as a motion to expand
the certificate of appealability. So construed, the motion is denied. See 9th Cir. R.
2
22-1(e); see also Hiivala v. Wood, 195 F.3d 1098, 1104–05 (9th Cir. 1999) (per
curiam).
AFFIRMED.
3