James Moody v. Scott Frakes ( 2010 )

FILED
NOT FOR PUBLICATION DEC 28 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES MOODY, No. 09-35997
Petitioner - Appellant, D.C. No. 3:09-cv-05204-RJB
v.
MEMORANDUM*
SCOTT FRAKES,
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 November 5, 2010
Seattle, Washington
Before: B. FLETCHER and BYBEE, Circuit Judges, and WILKEN, District
Judge.**
Petitioner-Appellant James Moody appeals the district court’s denial of his
petition for writ of habeas corpus sought on ineffective assistance of counsel
grounds. We have jurisdiction under 28 U.S.C. §§ 1291, 2253(a). We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Claudia Wilken, United States District Judge for the
Northern District of California, sitting by designation.
Moody argues that the Washington Court of Appeals unreasonably
concluded that he was not prejudiced by defense counsel’s failure to challenge the
comparability of his out-of-state convictions to a strike offense under
Washington’s Persistent Offender Accountability Act, Wash. Rev. Code Chapter
9.94A. Under that statute, Moody’s most recent conviction was deemed a third
strike, which resulted in a sentence of life without the possibility of parole.
Defense counsel did not argue to the trial court that his out-of-state
convictions were not comparable to assault in the second degree. Although
appellate counsel made a very limited comparability argument on appeal, the
Washington Court of Appeals engaged sua sponte in a detailed comparability
analysis and held that Moody’s 1987 California conviction for assault with a
deadly weapon, Cal. Penal Code § 245 (1987), and 1993 Utah conviction for
aggravated assault with a dangerous weapon, Utah Code Ann. § 76-5-103 (1993),
were legally and factually comparable to the strike offense of assault in the second
degree, under Wash. Rev. Code § 9A.36.021(1)(c).
Moody contends that the Washington Court of Appeals’ comparability
analysis was erroneous and, further, conducted in violation of Washington’s
waiver doctrine. Habeas corpus relief, however, does not lie for errors of state law.
Estelle v. McGuire, 502 U.S. 62, 67 (1991). Even if Moody were correct, the
2
Washington Court of Appeals’ determination of comparability is a binding
interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (“[A]
state court's interpretation of state law, including one announced on direct appeal
of the challenged conviction, binds a federal court sitting in habeas corpus.”).
Moody, therefore, cannot show a reasonable probability that, but for defense
counsel’s failure to make a comparability argument, the result of his case would
have been different. See Strickland v. Washington, 466 U.S. 668, 694 (1984). The
Washington Court of Appeals’ determination that Moody’s ineffective assistance
of counsel claim fails was not an unreasonable application of federal law.
AFFIRMED.
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