Mark Gray v. Dean Borders ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 25 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK WAYNE GRAY, No. 18-16604
Petitioner-Appellant, D.C. No.
2:13-cv-00564-KJM-EFB
v.
DEAN BORDERS, Warden, MEMORANDUM * P0F P
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, Chief District Judge, Presiding
Submitted November 19, 2020** P 1F P
San Francisco, California
Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.
Mark Wayne Gray was convicted in California state court of sexual
penetration with a foreign object and received a five-year sentence enhancement for
administering a controlled substance during the commission of that crime. See Cal.
Penal Code §§ 289(d), 12022.75(b). Gray now seeks review of the district court’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
denial of his federal habeas petition. See 28 U.S.C. § 2254. We review de novo the
denial of § 2254 relief. Deck v. Jenkins, 814 F.3d 954, 977 (9th Cir. 2016). We
have jurisdiction under 28 U.S.C. § 2253 and affirm.
1. To demonstrate a due process violation based on insufficient evidence,
Gray must show that, “reviewing the evidence in the light most favorable to the
prosecution, no rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” United States v. Garcia-Guizar, 160 F.3d 511,
516 (9th Cir. 1998) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When
reviewing sufficiency of the evidence, we “undertake the inquiry with reference to
the elements of the criminal offense as set forth by state law.” Juan H. v. Allen, 408
F.3d 1262, 1275–76 (9th Cir. 2005) (citing Jackson, 443 U.S. at 324 n.16). Under
the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), “we ask only
whether the state court’s decision was contrary to or reflected an unreasonable
application of Jackson to the facts of a particular case.” Emery v. Clark, 643 F.3d
1210, 1213–14 (9th Cir. 2011) (per curiam).
The California Supreme Court denied Gray’s habeas petition without
comment. Although the California Court of Appeal had previously addressed Gray’s
arguments in a reasoned direct appeal decision, the State has “rebut[ted] the
presumption” that the California Supreme Court’s denial of review encompassed the
same reasoning as the California Court of Appeal. Wilson v. Sellers, 138 S. Ct. 1188,
2
1192 (2018). That is because the California Supreme Court had explicitly invited
Gray to seek habeas relief based on “whether [he] is entitled to relief in light of
People v. Davis, [303 P.3d 1179 (Cal. 2013)].” Davis had not been issued at the
time of the Court of Appeal’s decision. The California Supreme Court’s denial of
review is therefore the operative decision for AEDPA purposes, and Gray must show
that “there was no reasonable basis for [that court] to deny relief.” Harrington v.
Richter, 562 U.S. 86, 98 (2011).
It would have been reasonable for the California Supreme Court to reject
Gray’s challenge to the sufficiency of the evidence supporting his sentencing
enhancement in light of Davis. Davis makes clear that “any substance expressly
listed by any accepted name in sections 11054 through 11058 [of the California
Health & Safety Code] is a controlled substance as a matter of law, and the jury need
not make any further finding in that regard.” 303 P.3d at 1184 n.5. The jury
specifically found true that Gray administrated Ambien to his victim, and it is
undisputed that Ambien is a brand name of zolpidem, which is expressly listed as a
controlled substance. Id.; Cal. Health & Safety Code § 11057(d)(32).
2. Gray next argues that his constitutional rights were violated under
Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury did not find that Gray
administered zolpidem. This argument fails for the same reason as Gray’s challenge
to the sufficiency of the evidence. The jury found that Gray administered Ambien,
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and the California Supreme Court could have reasonably found the jury’s finding
sufficient. Davis, 303 P.3d at 1184 n.5.
3. Gray requests a certificate of appealability on the question of whether
he was denied the right to a fair trial after the trial court compelled the disclosure of
certain letters Gray had written to his attorney, which Gray used to refresh his
recollection for his testimony. We have carefully reviewed this request and deny it
because Gray has not made a “substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2).
AFFIRMED.1
1
We deny Gray’s motion for judicial notice (Dkt. No. 35).
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