Sarausad v. Porter

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CESAR SARAUSAD,  No. 05-35062
Petitioner-Appellee, D.C. No.
v. CV-02-02547-JCC
CAROL PORTER,  Western District of
Respondent-Appellant. Washington,
Seattle
 ORDER
Filed September 10, 2007
Before: Stephen Reinhardt, William A. Fletcher, and
Jay S. Bybee, Circuit Judges.
Order;
Dissent by Judge Callahan
ORDER
Judge Reinhardt and Judge W. Fletcher voted to deny the
petition for rehearing en banc. Judge Bybee voted to grant the
petition for rehearing en banc.
A judge of the court called for a vote on the petition for
rehearing en banc. A vote was taken, and a majority of the
non-recused active judges of the court failed to vote for en
banc rehearing. Fed. R. App. P. 35(f).
The petition for rehearing en banc, filed March 19, 2007,
is DENIED.
The initial order concerning Petitioner Sarausad’s custody
is VACATED, and the district court is instructed on remand
12065
12066 SARAUSAD v. PORTER
to decide whether Sarausad should remain in custody pending
the state’s decision to retry him.
CALLAHAN, Circuit Judge, with whom O’SCANNLAIN,
GOULD, BYBEE, and BEA, Circuit Judges, join, dissenting
from the denial of rehearing en banc:
I respectfully dissent from the denial of rehearing en banc
because the panel majority fails to give the proper deference
to the Washington Supreme Court’s interpretation of Wash-
ington’s accomplice liability statute. This is fundamentally a
case about Washington state’s right to define the parameters
of accomplice liability under its own state law. The panel
majority not only misinterprets Washington law but also
refuses to accord the Washington courts the required defer-
ence required by well established precedent and basic princi-
ples of federalism. By doing so, the panel majority elevates
what it considers to be a Washington state court’s mistake in
interpreting Washington state law into a constitutional viola-
tion. As a result of our lack of deference, our court takes the
unprecedented step of rejecting a standardized state jury
instruction that the Washington Supreme Court has expressly
approved as correctly stating the limits of accomplice liability
under state law.
The required deference to state court interpretations of state
law was reinforced and supplemented by 28 U.S.C.
§ 2254(d)(1) after passage of the Antiterrorism and Effective
Death Penalty Act (“AEDPA”). The majority opinion simply
ignores the Supreme Court’s specific instructions in Williams
v. Taylor, 529 U.S. 362, 410-13 (2000), on how to apply the
highly deferential “contrary to” and “unreasonable application
of” Supreme Court precedent standards from AEDPA. By
avoiding analysis of why — in the face of Washington
Supreme Court and Washington appellate court decisions
affirming the jury instructions at issue and the principles con-
SARAUSAD v. PORTER 12067
cerning the limits of accomplice liability under Washington
law — the state court decisions were objectively unreasonable
applications of a specific Supreme Court holding, the panel
majority fails to properly apply AEDPA.
I. The jury instruction was taken directly from the
Washington complicity statute.
Central to our analysis is the language of Washington’s
complicity statute and the actual language of the jury instruc-
tion given in Sarausad’s case. The Revised Code of Washing-
ton (“RCW”) § 9A.08.020 codifies liability for complicity
under Washington law. Section 9A.08.020, subsections (2)
and (3) define accomplice liability, stating in relevant part:
(2) A person is legally accountable for the conduct
of another person when: . . .
(c) He is an accomplice of such other person in the
commission of the crime.
(3) A person is an accomplice of another person in
the commission of a crime if:
(a) With knowledge that it will promote or facili-
tate the commission of the crime, he
(i) solicits, commands, encourages, or requests
such other person to commit it; or
(ii) aids or agrees to aid such other person in
planning or committing it; or
(b) His conduct is expressly declared by law to
establish his complicity.
During Sarausad’s trial, the trial court gave Instructions 45
and 46 to explain accomplice liability. Instruction 45 stated:
12068 SARAUSAD v. PORTER
You are instructed that a person is guilty of a crime
if it is committed by the conduct of another person
for which he is legally accountable. A person is
legally accountable for the conduct of another person
when he is an accomplice of such other person in the
commission of the crime.
Sarausad v. Porter, 479 F.3d 671, 685 (9th Cir. 2007).
Instruction 46 defined accomplice liability for the jury as fol-
lows:
A person is an accomplice in the commission of a
crime if, with knowledge that it will promote or
facilitate the commission of the crime, he or she
either:
(1) solicits, commands, encourages, or
requests another person to commit the
crime or
(2) aids or agrees to aid another person in
planning or committing the crime.
The word “aid” means all assistance whether given
by words, acts, encouragement, support or presence.
A person who is present at the scene and ready to
assist by his or her presence is aiding in the commis-
sion of the crime. However, more than mere pres-
ence and knowledge of the criminal activity of
another must be shown to establish that a person
present is an accomplice.
Id. at 685 n.1 (emphasis added). There is no difference
between the statute and the jury instruction, with the excep-
tion that the phrase “the crime” replaces the word “it” in the
jury instruction.
SARAUSAD v. PORTER 12069
II. The panel majority does not follow binding Washing-
ton Supreme Court precedent and fails to give the
proper deference to the Washington Court of
Appeals, resulting in a misinterpretation of Washing-
ton accomplice liability law.
As federal courts, we must accept that Washington’s state
courts correctly applied Washington laws. Bell v. Cone, 543
U.S. 447, 455 (2005). The panel majority fails to follow the
fundamental principle of our federal system “that 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.” Bradshaw v. Richey, 546 U.S.
74, 76 (2005); see also West v. AT&T, 311 U.S. 223, 236
(1940) (“[T]he highest court of the state is the final arbiter of
what is state law. When it has spoken, its pronouncement is
to be accepted by federal courts as defining state law . . . .”).
This principle applied to federal habeas review of state con-
victions long before AEDPA. See Mullaney v. Wilbur, 421
U.S. 684, 691 (1975) (“state courts are the ultimate expositors
of state law”). A federal circuit court errs if it interprets a state
legal doctrine in a manner that directly conflicts with the state
supreme court’s interpretation of the law. See Bradshaw, 546
U.S. at 76-78 (“Because the Sixth Circuit disregarded the
Ohio Supreme Court’s authoritative interpretation of Ohio
law, its ruling on sufficiency of the evidence was errone-
ous.”). It does not matter that the state supreme court’s state-
ment of the law was dictum if it is perfectly clear and
unambiguous. Id. at 76.
A determination of state law by a state appellate court is
also binding in a federal habeas action. See Hicks v. Feiock,
485 U.S. 624, 629-30, 630 n.3 (1988) (noting state appellate
court’s determination of state law is binding and must be
given deference). This is especially true where the highest
court in the state has denied review of the lower court’s deci-
sion. Id.; see also West, 311 U.S. at 237 (“This is the more so
where, as in this case, the highest court has refused to review
12070 SARAUSAD v. PORTER
the lower court’s decision rendered in one phase of the very
litigation which is now prosecuted by the same parties before
the federal court.”).
This case illustrates exactly why these long-standing princi-
ples of deference and comity between the federal courts and
the state courts exist — because interpreting state law is not
a core function of the federal courts we lack the expertise to
interpret state laws. More importantly, we lack authority to
rewrite or reinterpret state law. “[O]nly state courts may
authoritatively construe state statutes.” BMW of N. Am., Inc.
v. Gore, 517 U.S. 559, 577 (1996); see also Wainwright v.
Goode, 464 U.S. 78, 84 (1983) (per curiam) (“[T]he views of
the state’s highest court with respect to state law are binding
on the federal courts.”). It is axiomatic that “our Constitution
establishes a system of dual sovereignty between the States
and the Federal Government.” Gregory v. Ashcroft, 501 U.S.
452, 457 (1991). The states possess inherent law-making
authority — both with respect to statutory and common law.
See New York v. United States, 505 U.S. 144, 161 (1992)
(holding that Congress may not commandeer the legislative
processes of the States). When a state statute or common law
conflicts with the United States Constitution, we will declare
the state law to be null and void, but we have no authority to
alter or reinterpret state law.
By ignoring the deference normally given to state court
decisions concerning state law, we misinterpret Washington’s
accomplice liability statute and find a federal due process vio-
lation based on a phantom conflict between Washington
Supreme Court and appellate court cases. A closer review of
Washington case law reveals that the state appellate court’s
opinion in this case is consistent with a long line of authority
approving of the jury instruction actually used in this case,
and that the Washington courts have consistently approved of
the jury instruction.
SARAUSAD v. PORTER 12071
A. The panel majority comes to a conclusion directly con-
trary to Washington Supreme Court precedent and
Washington state law.
The Washington Supreme Court expressly adopted the jury
instruction at issue as a correct statement of Washington’s
accomplice liability law in the very case the panel majority
cites to overturn the jury instruction. After Sarausad’s trial
and direct appeal, the Washington Supreme Court clarified
the limits of Washington’s accomplice liability law (Wash.
Rev. Code § 9A.08.020) in State v. Roberts, 14 P.3d 713, 734-
36 (Wash. 2000).1 The Washington Supreme Court held that
a jury instruction that “improperly departed from the language
of the statute” created the possibility that a jury could impose
strict liability on an accomplice for any acts by the principal
so long as the accomplice knew the principal would commit
“a crime.”2 Id. at 735-36. The Washington Supreme Court
1
The Washington Supreme Court also interpreted Washington’s aggra-
vated first degree murder statute (Wash. Rev. Code § 10.95.020), and held
that “major participation by a defendant in the acts giving rise to the homi-
cide is required in order to execute a defendant convicted solely as an
accomplice to premeditated first degree murder.” Id. at 733. This brought
Washington law in conformity with the Supreme Court precedent from
Enmund v. Florida, 458 U.S. 782, 784-798 (1982) and Tison v. Arizona,
481 U.S. 137, 158 (1987).
2
The full text of the jury instruction in Roberts, as quoted in relevant
part by the Washington Supreme Court read:
You are instructed that a person is guilty of a crime if it is com-
mitted by the conduct of another person for which he is legally
accountable. A person is legally accountable for the conduct of
another person when he is an accomplice of such other person in
the commission of a crime.
A person is an accomplice in the commission of a crime, whether
present at the time of its commission or not, if, with knowledge
that it will promote or facilitate its commission, he either:
(a) solicits, commands, encourages or requests another person to
commit the crime; or
(b) aids another person in planning or committing the crime.
Roberts, 14 P.3d at 735.
12072 SARAUSAD v. PORTER
noted that RCW § 9A.08.020(3)(a) was patterned after Model
Penal Code § 2.06(3)(a), and that the commentary required
the accomplice to “ ‘have the purpose to promote or facilitate
the particular conduct that forms the basis for the charge’ and
states, ‘he will not be liable for conduct that does not fall
within this purpose.’ ” Id. at 735 (quoting Model Penal Code
§ 2.06 cmt. 6(b) (1985)). The Washington Supreme Court
summarized its holding as follows:
General knowledge of “the crime” is sufficient. Nev-
ertheless, knowledge by the accomplice that the prin-
cipal intends to commit “a crime” does not impose
strict liability for any and all offenses that follow.
Such an interpretation is contrary to the statute’s
plain language, its legislative history, and supporting
case law.
Roberts, 14 P.3d at 736.
In reaching its conclusion that the jury instruction in Rob-
erts was incorrect, the Washington Supreme Court distin-
guished and approved its prior reasoning in State v. Davis,
682 P.2d 883 (1984). The Roberts court noted that “the jury
instruction in Davis, unlike the jury instruction here, copied
exactly the language from the accomplice liability statute: it
allowed for a conviction as an accomplice if the accomplice
acted ‘with knowledge that it will promote or facilitate the
commission of the crime . . . .’ ”3 Roberts, 14 P.3d at 736
3
The jury instruction in Davis read as follows:
A person is an accomplice in the commission of a crime, if, with
knowledge that it will promote or facilitate the commission of the
crime, he or she either:
1) solicits, commands, encourages, or requests another per-
son to commit the crime; or
2) aids or agrees to aid another person in planning or com-
mitting the crime.
SARAUSAD v. PORTER 12073
(quoting jury instruction from Davis, 682 P.2d at 884-85);
State v. Allen, 66 P.3d 653, 659 (Wash. Ct. App. 2003)
(“Roberts expressly approved of the accomplice instruction in
State v. Davis . . . .”). The Roberts court then reaffirmed “that
Davis does not impose strict liability on accomplices for any
and all crimes but merely reaffirms our long-standing rule that
an accomplice need not have specific knowledge of every ele-
ment of the crime committed by the principal, provided he has
general knowledge of that specific crime.” Roberts, 14 P.3d
at 736. In a companion case, State v. Cronin, 14 P.3d 752,
757-58 (Wash. 2000), the Washington Supreme Court fol-
lowed Roberts, but also cited with approval Davis to support
the idea that under state law, criminal liability for an accom-
plice may be imposed only as long as the defendant has gen-
eral knowledge of “the crime” for which he or she was
eventually charged.
Under the facts of this case, the panel majority correctly
finds sufficient evidence that Sarausad was at least an accom-
plice to second degree murder. There were numerous discus-
sions concerning returning to Ballard High School to
intimidate the rival gang. Sarausad, 479 F.3d at 680-81.
Sarausad drove to pick up the gang member who had a gun.
Id. at 682. Witnesses testified that Sarausad circled the high
school several times, and one of the occupants of his car dis-
played a gun. Id. Furthermore, Sarausad drove by the steps of
the school, slowed down, and waited for Ronquillo to fire four
to ten shots before speeding away. Id. at 675, 682. This is not
a case where Sarausad was convicted of second degree mur-
der relating to his aiding and abetting a fraud scheme or a
petty theft; the type of strict liability for any crime that the
The word “aid” means all assistance whether given by
words, acts, encouragement, support or presence. A person
who is present at the scene and is ready to assist by his or
her presence is aiding in the commission of the crime.
Davis, 682 P.2d at 884-85.
12074 SARAUSAD v. PORTER
Washington Supreme Court held was not contemplated by
RCW § 9A.08.020. Thus, the distinction between “a crime”
and “the crime” is not relevant in cases, such as this one,
where the defendant was present and willing to facilitate the
acts of the shooter. See State v. Vincent, 120 P.3d 120, 124-25
(Wash. Ct. App. 2005) (concluding passenger aided and abet-
ted shooter in a drive by shooting).
No Washington court has ever disapproved of a jury
instruction that tracked the exact language of section
9A.08.020. In fact, jury instructions identical to the one used
in Sarausad’s case have been expressly approved both before
and after the Roberts decision.4 In State v. Moran, 81 P.3d
122, 129-30 (Wash. Ct. App. 2003), the Washington Court of
Appeals noted that the defendant proffered the exact same
instruction used in Sarausad’s case, and that “[t]he accom-
plice liability instruction Moran proposed, not the instruction
the court gave, is the correct statement of the law of accom-
plice liability.” The only instructions that Washington state
courts have found deficient under Roberts have used the
phrase “a crime” in a clause other than “A defendant is an
accomplice in the commission of a crime . . . .”5 In each of
4
See State v. O’Neal, 109 P.3d 429, 441 (Wash. Ct. App. 2005) (analyz-
ing this exact instruction and concluding that, “[h]ere, the instructional
language at issue in Cronin does not exist because instruction 16 referred
to ‘the crime.’ Instruction 16 did not misstate the law and Harry’s argu-
ment fails”); State v. Bockman, 682 P.2d 925, 936-37 (Wash. Ct. App.
1984) (“There was no error as to the instruction concerning the mental
state of the accomplice.”); see also Allen, 66 P.3d at 659 (concluding there
was no Roberts error where the instruction stated: “A person is an accom-
plice in the commission of the crime if, with knowledge that it will pro-
mote or facilitate the commission of the crime, he or she either: (1)
solicits, commands, encourages, or requests another person to commit the
crime; or (2) aids or agrees to aid another person in planning or commit-
ting the crime.”).
5
See State v. Evans, 114 P.3d 627, 634 (Wash. 2005) (“with the knowl-
edge that it will promote or facilitate the commission of a crime” and
“aids or agrees to aid another person in planning or committing a crime”);
SARAUSAD v. PORTER 12075
these cases, the “a crime” language in a clause explaining the
required knowledge or acts of the defendant created the over-
breadth error under state law.
Every decision examining the jury instruction given in
Sarausad’s case, as well as RCW § 9A.08.020, has deter-
mined that the instruction adequately and properly informs the
jury of the intent necessary to find criminal liability under
Washington law. The Washington Supreme Court expressly
declared that the jury instruction given does not impose strict
liability on defendants. Roberts, 14 P.3d at 736. Washington
law clearly holds that the jury instruction in this case was a
proper statement of Washington’s accomplice liability law.
Yet the panel majority ignores both the statute and the
cases approving of the jury instruction, in concluding that the
Washington Supreme Court rejected a “very similar” instruc-
tion. See Sarausad, 479 F.3d at 690. The panel majority
ignores the specific language from Roberts, 14 P.3d at 736,
approving of the jury instruction used in Sarausad’s case. Id.
The majority takes the Washington Court of Appeals to task
for following the Washington Supreme Court’s decision in
Roberts and approving the jury instruction language that cop-
ied RCW § 9A.08.020. Id. at 691. The Washington Court of
Appeals, however, properly noted that the Roberts court relied
upon language from the Model Penal Code commentary that
an accomplice has “the purpose to promote or facilitate the
particular conduct that forms the basis for the charge.” In re
Sarausad, 39 P.3d 308, 315 (Wash. Ct. App. 2001). Directly
quoting the reasoning of the Washington Supreme Court is
neither improper for a Washington Court of Appeals, nor an
State v. Berube, 79 P.3d 1144, 1147-49 (Wash. 2003) (same); State v.
Brown, 58 P.3d 889, 893 (Wash. 2002) (same); Cronin, 14 P.3d at 756-57
(same); Roberts, 14 P.3d at 735 (after “a crime,” “with knowledge that it
will promote or facilitate its commission”); In re Smith, 73 P.3d 386, 392
(Wash. Ct. App. 2003) (same as Evans).
12076 SARAUSAD v. PORTER
improper application of state law. Therefore, the panel majori-
ty’s conclusions directly conflict with the Washington
Supreme Court’s and the Washington appellate courts’ deci-
sions about the scope of accomplice liability and the propriety
of the jury instructions in Sarausad’s case.
We must accept as binding the Washington Supreme
Court’s express approval of the instruction and the statute as
accurate and proper statements of Washington’s accomplice
liability law. Bradshaw, 546 U.S. at 76-78. Having deter-
mined that there was no state law error from the use of the
accomplice liability jury instruction in Sarausad’s case, the
question becomes whether RCW § 9A.08.020, by defining
accomplice liability, violates the Due Process Clause by
impermissibly shifting the burden of proof from the state to
Sarausad.
B. Defining the limits of Washington state’s accomplice
liability law does not impermissibly shift any burdens
under Winship.
The panel majority fails to cite to any authority that Wash-
ington’s definition of accomplice liability violates a “funda-
mental principle, so as to limit the traditional recognition of
a State’s capacity to define crimes and defenses.” Clark v.
Arizona, ___ U.S. ___, 126 S. Ct. 2709, 2719, 165 L. Ed. 2d
842, 859 (2006); see also Stanton v. Benzler, 146 F.3d 726,
728 (9th Cir. 1998) (noting “a state is generally free within
broad limits to define the elements of a particular offense”
and shielding from habeas review a state law determination
that arsenic trioxide is a poison as a matter of law). The
Washington Supreme Court’s pronouncement that the jury
instructions approved in Davis are a correct statement that
accomplice liability includes situations where the conse-
quences are reasonably foreseeable (as opposed to imposing
strict liability for any crime committed) should be conclusive.
After all, the last word on the parameters of Washington’s
accomplice liability law “belongs neither to us nor to the dis-
SARAUSAD v. PORTER 12077
trict court but to the supreme court of [Washington].” R.R.
Comm’n of Texas v. Pullman Co., 312 U.S. 496, 500 (1941).
Even Estelle v. McGuire, 502 U.S. 62, 71-72 (1991), the case
relied upon by the majority opinion, recognized “the fact that
the [jury] instruction was allegedly incorrect under state law
is not a basis for habeas relief.” Just because the panel major-
ity feels that the Washington Court of Appeals’ interpretation
of the accomplice liability law to allow for foreseeable conse-
quences as opposed to strict liability is incorrect does not jus-
tify the grant of habeas corpus. See Duckett v. Godinez, 67
F.3d 734, 744 (9th Cir. 1995) (“The fact that a jury instruction
is inadequate by Ninth Circuit direct appeal standards does
not mean a petitioner who relies on such an inadequacy will
be entitled to habeas relief from a state court conviction.”).
This is not a case where the burden of proof was something
other than beyond a reasonable doubt. See In re Winship, 397
U.S. 358, 364 (1970). Nor is this a case where the statute
requires the defendant to prove a defense that negates an ele-
ment of the crime or created a presumption concerning an ele-
ment of the crime.6 Rather, the burden remains on the habeas
petitioner to show that accomplice liability limits are “so
rooted in the traditions and conscience of our people as to be
ranked as fundamental” in order to support a due process
claim. Montana v. Egelhoff, 518 U.S. 37, 47 (1996) (internal
quotation marks omitted). Sarausad has made no showing that
some codification of complicity liability is a fundamental
principle of criminal law, or deeply rooted, or that Washing-
ton’s definition of accomplice liability somehow violates that
principle. See Patterson v. New York, 432 U.S. 197, 201-02
6
See Francis v. Franklin, 471 U.S. 307, 317 (1985) (holding mandatory,
rebuttable presumptions regarding intent are unconstitutional); Sandstrom
v. Montana, 442 U.S. 510, 521 (1979) (invalidating Montana instruction
stating that a defendant is presumed to intend the consequences of their
actions); Mullaney, 421 U.S. at 703-04 (finding Maine statute that
required defendants to prove heat of passion by a preponderance of the
evidence unconstitutional).
12078 SARAUSAD v. PORTER
(1977) (discussing fundamental principles for the purposes of
due process claims).
The Supreme Court has defined the category of jury
instructions that violate “fundamental fairness” very nar-
rowly. See Estelle, 502 U.S. at 72-73 (citing Dowling v.
United States, 493 U.S. 342, 352 (1990)). In fact, the Supreme
Court stated, that “[i]f a State’s courts have determined that
certain statutory alternatives are mere means of committing a
single offense, rather than independent elements of the crime,
we simply are not at liberty to ignore that determination and
conclude that the alternatives are, in fact, independent ele-
ments under state law.” Schad v. Arizona 501 U.S. 624, 636
(1991). The Supreme Court in Schad rejected the idea that
pursuing statutory, alternative theories of liability somehow
impermissibly shifted the burden of proof from the state. Id.
at 631-32.
The Washington Supreme Court has never interpreted
RCW § 9A.08.020, or the jury instruction in Davis, as requir-
ing a lesser standard of proof or creating a presumption con-
cerning accomplice liability. In fact, the Washington Supreme
Court reiterated that the prosecution is required to prove
beyond a reasonable doubt an intent to aid, abet, facilitate, etc.
the particular act that constitutes the crime under RCW
§ 9A.08.020. Cronin, 14 P.3d at 758.
Despite the panel majority’s citation to In re Winship, it
fails to explain, as our cases require, which burden concerning
accomplice liability the challenged instruction shifted from
the state to the defendant. See Juan H. v. Allen, 408 F.3d
1262, 1275 (9th Cir. 2005) (noting that equal protection
inquiry must be in “reference to the elements of the criminal
offense as set forth by state law”). The panel majority fails to
cite any Supreme Court case holding that an overstatement of
accomplice liability impermissibly shifts the burden of proof
from the prosecutor to the defendant. The only case discuss-
ing theories of liability, Schad v. Arizona, 501 U.S. at 631-32,
SARAUSAD v. PORTER 12079
rejected the idea that pursuing alternative theories of liability
impermissibly shifted the burden of proof under Winship and
Mullaney. The Washington Supreme Court’s approval of the
statute and the instruction as given in Sarausad’s case, means
that there was no Winship / Mullaney issue in this case
because RCW § 9A.08.020 simply defined what was required
to find accomplice liability. See Stanton, 146 F.3d at 728.
Nothing about Washington’s definition of accomplice liabil-
ity, or the jury instruction concerning accomplice liability
impermissibly shifted a burden from the prosecution to Sarau-
sad. Accordingly, neither the Due Process Clause nor Winship
and its progeny allow a federal court to hold that an ordinary
definition of accomplice liability is unconstitutional.
C. The prosecutor’s arguments were not improper
statements in the context of the trial and Washington
state law.
The panel majority makes much of the fact that the prose-
cutor argued an “in for a dime, in for a dollar” theory, insist-
ing that the prosecutor’s argument made the accomplice
liability jury instruction unsound. See Sarausad, 479 F.3d at
684-85, 693. The majority fails to appreciate, however, that
this was a proper argument concerning Washington’s felony
murder rule, an alternative theory charged against Sarausad.
See In re Sarausad, 39 P.3d at 312 n.2 (noting all three defen-
dants charged with the second degree felony murder of
Melissa Fernandes); see also State v. Wanrow, 588 P.2d 1320,
1323-24 (Wash. 1978) (holding assault can serve as the predi-
cate felony for a felony murder conviction).7 Furthermore, the
prosecutor’s hypotheticals: a person holding the arms of the
victim during an assault and the driver for a bank robbery
were based on state appellate court decisions about aiding and
7
State v. Wanrow was reversed by In re Andress, 56 P.3d 981, 998
(Wash. 2002). The Washington Legislature then clarified that assault
could be a predicate felony for felony murder in 2003. See 2003 Wash.
Adv. Leg. Serv. ch. 3 §§ 1-2.
12080 SARAUSAD v. PORTER
abetting liability.8 The prosecutor, by analogizing Sarausad’s
conduct of driving Ronquillo to the scene and slowing down
to allow Ronquillo to fire at the victims to an accomplice who
holds someone’s arms while the principal beats the victim to
death was not outside the bounds of accomplice liability. See
Roberts, 14 P.3d at 735 (noting the Model Penal Code com-
mentary that the accomplice must “have the purpose to pro-
mote or facilitate the particular conduct that forms the basis
for the charge”). Finally, the prosecutor’s arguments that
Sarausad’s participation as a driver throughout the act and
afterward justified convicting him under Washington state
law was a proper statement of aiding and abetting the murder.
See Vincent, 120 P.3d at 124-25 (finding sufficient evidence
of facilitation for passenger who served as a lookout and
ducked so the driver could shoot out the passenger side win-
dow during a gang-related drive by shooting); In re Smith, 73
P.3d at 395, 397 (concluding defendant’s willingness to con-
tinue driving co-defendant who robbed and kidnapped victims
was sufficient evidence of facilitating the crimes).
8
See State v. Carothers, 525 P.2d 731, 736 (Wash. 1974), disapproved
on other grounds by State v. Harris, 685 P.2d 584, 587 (Wash. 1984)
(“Whether he holds the gun, holds the victim, keeps a lookout, stands by
ready to help the assailant, or aids in some other way, he is a partici-
pant.”); State v. Trout, 105 P.3d 69, 75 (Wash. Ct. App. 2005) (finding
sufficient evidence to convict as an accomplice where defendant knew
about the plan to rob residents, armed the co-defendants, and was willing
to provide backup even though he intended to rob a person who wasn’t at
the apartment); State v. Haack, 958 P.2d 1001, 1003-04 (Wash. Ct. App.
1997) (“Where several people beat up on a victim at the same time and
the victim suffers great bodily injury from the beating, it may not be possi-
ble for the State to prove which person was responsible for inflicting the
life-threatening injury; it is sufficient to convict all of the participants if
the State can prove that the life-threatening injury was inflicted by one or
more of the participants during the beating and that at least one of the par-
ticipants intended to inflict great bodily harm.”).
In Davis, the Washington Supreme Court went further, stating that “the
law has long recognized that an accomplice, having agreed to participate
in a criminal act, runs the risk of having the primary actor exceed the
scope of the preplanned illegality.” 682 P.2d at 886. The Washington
Supreme Court has not overruled or questioned Davis on this point.
SARAUSAD v. PORTER 12081
Nothing in the prosecutor’s argument stated that the prose-
cutor did not need to prove every element of the crime.
Rather, the prosecutor’s arguments presented legitimate theo-
ries of liability under Washington law.9 There is no evidence
that the trial court failed to properly instruct the jury that the
burden was on the prosecution to prove all the elements of
accomplice liability beyond a reasonable doubt. The panel
majority’s discussion of the prosecutor’s argument is taken
out of context, fails to consider alternative theories, and is
based on the false premise that the jury instruction was erro-
neous. As a result, the prosecutor’s comments may not be
used to bolster a weak argument that an instruction that was
a correct statement of state law was somehow erroneous or
unconstitutional.
The panel majority’s misinterpretation of Washington law
could have been avoided by giving the Washington courts the
proper deference. The opinion conflicts with binding Supreme
Court precedent mandating that we refrain from attempting to
define elements of liability when the state supreme court has
made a clear and unambiguous statement of what the applica-
ble state law is. Bradshaw, 546 U.S. at 76-78; see also Bains
v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000) (stating stan-
dard of review and deference due to state supreme court cases
interpreting state law). As a federal court, we should not
expand our duties to rewrite state laws and jury instructions.
Instead, we must defer to the specific pronouncements of the
Washington Supreme Court, conclude that the jury instruction
9
Under Washington law, “anyone who participates in the commission
of a crime is guilty of the crime and should be charged as a principal,
regardless of the degree or nature of his participation. Whether he holds
the gun, holds the victim, keeps a lookout, stands by ready to help the
assailant, or aids in some other way, he is a participant.” Carothers, 525
P.2d at 736. Aiding or agreeing to aid a person to plan or commit the
charged crime is sufficient to make a defendant liable as a principal. See
State v. McDonald, 981 P.2d 443, 449-50 (Wash. 1999) (analyzing accom-
plice liability under Washington law and concluding that there is no proxi-
mate causation requirement).
12082 SARAUSAD v. PORTER
in this case properly stated the scope of Washington’s accom-
plice liability law, and reverse the district court’s grant of
habeas corpus.
III. The panel majority fails to properly apply AEDPA’s
deferential requirements.
Even if the Washington Court of Appeals reached an incor-
rect conclusion about state law, this would not support the
issuance of a writ under AEDPA. It also conflicts with our
post-AEDPA burden of proof decisions in Lambert v. Blod-
gett, 393 F.3d 943, 973-76 (9th Cir. 2004) (applying deferen-
tial AEDPA standards to determinations by the Washington
state courts), and Bruce v. Terhune, 376 F.3d 950, 955-56 (9th
Cir. 2004) (applying AEDPA standards to a claim that witness
credibility jury instructions lessened the burden of proof).
A. The AEDPA standards codified in 28 U.S.C.
§ 2254(d)(1) are mandatory and binding.
The majority’s failure to apply AEDPA’s “contrary to” or
“unreasonable application of” clearly established Federal law
standard is clearly erroneous and conflicts with Supreme
Court precedent mandating their application. AEDPA
amended 28 U.S.C. § 2254 to restrict federal habeas corpus
grants to state prisoners to cases where the state court pro-
ceedings “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1). Section 2254(d)(1)
creates two independent grounds for granting habeas relief to
a state prisoner: (1) that the state court’s determination was
“contrary to” Supreme Court precedent, and (2) that the state
court’s decision was an “unreasonable application” of
Supreme Court precedent. See Williams, 529 U.S. at 405
(approving of the Fourth Circuit’s interpretation that
§ 2254(d)(1) contains two independent grounds for relief).
Section 2254 sets forth a “highly deferential standard for eval-
SARAUSAD v. PORTER 12083
uating state court rulings,” Lindh v. Murphy, 521 U.S. 320,
333 n.7 (1997), that “demands that state court decisions be
given the benefit of the doubt.” Woodford v. Visciotti, 537
U.S. 19, 24 (2002) (per curiam). The panel majority, however,
fails to identify the specific ground for granting relief to
Sarausad on his accomplice liability instruction claim. Com-
pare Sarausad, 479 F.3d at 676-77 (stating the two-part stan-
dard) with id. at 689-94 (discussing the accomplice liability
instruction without finding that the Washington Court of
Appeals reached a result “contrary to” clearly established
Supreme Court precedent or made an objectively “unreason-
able application” of Supreme Court precedent).
1. The panel majority fails to make sufficient findings
for granting habeas to support an argument that the
Washington Court of Appeals decision was “contrary
to” clearly established Federal law.
A finding that the state court decision was “contrary to”
clearly established Supreme Court precedent, requires a deter-
mination that either “the state court arrives at a conclusion
opposite to that reached by [the Supreme Court] on a question
of law” or “the state court confronts facts that are materially
indistinguishable from a relevant Supreme Court precedent
and arrives at a result opposite to [the Supreme Court].”10 Wil-
liams, 529 U.S. at 405. The Supreme Court has never held
that an accomplice liability statute, or any similar statute or
jury instruction, was unconstitutional or impermissibly shifted
the burden of proof from the state to the defendant. The
Supreme Court has also not confronted facts that are materi-
ally indistinguishable from Sarausad’s case. The majority’s
failure to identify any applicable precedent, or point to any
part of the Washington Court of Appeals opinion that was
directly contrary to Supreme Court precedent precludes reli-
ance on the “contrary to” prong of § 2254(d)(1).
10
Clearly established Federal law “refers to the holdings, as opposed to
the dicta, of [the Supreme Court’s] decisions.” Id. at 412.
12084 SARAUSAD v. PORTER
2. The panel majority failed to make sufficient findings
to justify granting habeas because the state court
decision was an unreasonable application of Federal
law.
Assuming that the majority granted habeas based on an
“unreasonable application” of Supreme Court precedent, then
the majority’s opinion fails to apply the Supreme Court’s
holding that “[u]nder the ‘unreasonable application’ clause, a
federal habeas court may grant the writ if the state court iden-
tifies the correct governing legal principle from this Court’s
decisions but unreasonably applies that principle to the facts
of the prisoner’s case.” Williams, 529 U.S. at 413. “[A] fed-
eral habeas court making the ‘unreasonable application’
inquiry should ask whether the state court’s application of
clearly established federal law was objectively unreasonable.”
Id. at 409. “[A]n unreasonable application of federal law is
different from an incorrect application of federal law.” Id. at
410. “[A] federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that
the relevant state court decision applied clearly established
federal law erroneously or incorrectly. Rather, that application
must also be unreasonable.” Id. at 411. “Under the ‘unreason-
able application’ clause, a federal habeas court may grant the
writ if the state court identifies the correct governing legal
principle from this Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.” Id. at 413.
The panel majority fails to conduct any analysis under the
“unreasonable application” clause of 28 U.S.C. § 2254(d)(1).
See Sarausad, 479 F.3d at 689-94. Because it does not contain
any discussion of the legal principle involved, or why the
Washington Court of Appeals’ application of the principle
was “objectively unreasonable,” the majority’s opinion fails
to properly apply the AEDPA standards. See Mitchell v.
Esparza, 540 U.S. 12, 15 (2003) (admonishing because “[t]he
Court of Appeals, however, failed to cite, much less apply,
this section”). The requirements of AEDPA deference are
SARAUSAD v. PORTER 12085
binding directions to accord deference. See Uttecht v. Brown,
551 U.S. at ___, 127 S. Ct. 2218, 2224 (2007) (stating that the
AEDPA requirements are “additional, and binding, directions
to accord deference”).
The Supreme Court in Williams gave specific directions to
the federal courts on how to apply the “contrary to” and “un-
reasonable application” of Supreme Court precedent standards
of AEDPA. Congress included that language specifically to
prevent federal courts from granting habeas corpus by casu-
ally citing to broad language in Supreme Court opinions to
justify overturning state court denials of habeas relief. The
panel majority, however, does precisely that by pointing at
broad principles from In re Winship, 397 U.S. at 364, Sands-
trom v. Montana, 442 U.S. at 521, and Estelle v. McGuire,
502 U.S. at 72, and glossing over the analysis required by
Williams, 529 U.S. at 405, 409-11. See Sarausad v. Porter,
479 F.3d at 683-84, 689-94 (failing to make findings under
the two prongs of AEDPA). The findings and analysis under
both prongs of AEDPA stated in Williams are mandatory, not
optional. We should not be so cavalier with the application of
AEDPA when the Supreme Court has given us specific and
detailed instructions on how to apply the deferential stan-
dards.
3. The Washington Court of Appeals’ decision was
objectively reasonable.
The majority opinion essentially argues that the jury
instruction in this case was ambiguous because the Washing-
ton courts have come to conflicting results concerning the
jury instructions for accomplice liability. See Sarausad v.
Porter, 479 F.3d at 692. Sarausad has not, and cannot, dem-
onstrate that the state appellate court’s decision was objec-
tively unreasonable.
As noted above, the Washington Supreme Court drew a
clear line between permissible jury instructions that scrupu-
12086 SARAUSAD v. PORTER
lously follow RCW § 9A.08.020 and impermissible jury
instructions that create the inference that a defendant can be
strictly liable for any subsequent offense committed by his co-
defendants if he aids and abets them in the commission of any
crime.11 Roberts, 14 P.3d at 736. Given the Washington
Supreme Court’s language expressly approving of Davis and
the jury instruction that uses “the crime,” instead of “a crime,”
the Washington Court of Appeals was well within the bounds
of reason to conclude that the jury instruction in this case was
an accurate statement of the law.12 See In re Sarausad, 39
P.3d at 318. Subsequent cases following the court of appeals’
reasoning in this case and concluding that jury instructions
that follow the language of RCW § 9A.08.020 are correct,
demonstrate that the state court’s approach was objectively
reasonable. O’Neal, 109 P.3d at 441; Allen, 66 P.3d at 659.
Furthermore, the state court of appeals could properly hold
that the limited nature of the prosecutor’s argument in the cir-
cumstances of this case were within the bounds of Washing-
ton’s accomplice liability law based on prior case law. See
Carothers, 525 P.2d at 736; Haack, 958 P.2d at 1003-04.
Nothing about the state court of appeals’ decision makes it
objectively unreasonable, much less an objectively unreason-
able application of Supreme Court precedent. The Supreme
Court has never disapproved of the Model Penal Code con-
cerning accomplice liability, or any statute similar to RCW
§ 9A.08.020 as unconstitutionally ambiguous.13
11
Of course correct statements of state law and the burden of proof are
not constitutionally erroneous. See Bruce, 376 F.3d at 956 (concluding
that instructions that comport with Winship and state law were not consti-
tutionally erroneous).
12
Considering the court of appeals relied upon the Washington Supreme
Court’s own language from Roberts, it is not surprising that the state
supreme court refused to review the decision.
13
The cases cited by the panel majority concerning ambiguous jury
instructions concerned federal statutes on direct review, not state interpre-
tations of state statutes. See Liparota v. United States, 471 U.S. 419, 424
(1985) (discussing 7 U.S.C. § 2024(b)(1)); Staples v. United States, 511
U.S. 600, 604 (1994) (26 U.S.C. § 5861(d)); Ratzlaf v. United States, 510
U.S. 135, 149 (1994) (31 U.S.C. §§ 5322(a) and 5324(3)); United States
v. Speach, 968 F.2d 795, 796 (9th Cir. 1992) (42 U.S.C. § 6928(d)(1)).
SARAUSAD v. PORTER 12087
This case was not before us upon direct review. We were
required under Williams, 529 U.S. 409-413, to analyze
whether the court of appeals identified a correct principle
under Supreme Court precedent but applied the principle in an
objectively unreasonable manner. The panel majority failed to
conduct this inquiry, and even under state law, cannot show
that the state appellate court’s analysis was objectively unrea-
sonable. AEDPA was designed specifically to avoid unfet-
tered review of the reasonableness of state court decisions.
Sarausad has not demonstrated any objectively unreasonable
application of Supreme Court precedent, therefore, under
AEDPA, our duty was to deny his petition.
B. The majority’s opinion engages in improper de novo
review without giving the Washington Court of
Appeals’ legal conclusions about state law any defer-
ence in violation of Williams v. Taylor.
The majority’s opinion improperly analyzes the jury
instruction de novo and simply concludes that the Washington
Court of Appeals’ decision was incorrect, instead of identify-
ing what legal principle the state court applied in an “objec-
tively unreasonable” manner. By setting aside the Washington
Court of Appeals’ legal conclusion that the jury instruction
given in Sarausad’s case was a proper statement of Washing-
ton law, the panel majority conflicts with this court’s opinion
in Lambert v. Blodgett, 393 F.3d at 975-76, because it fails to
find (and, as discussed above cannot find) that the state
courts’ legal conclusions were objectively unreasonable or
contrary to established Supreme Court precedent. Rather, the
panel majority proceeds to undertake what amounts to a direct
review of the allegedly improper jury instruction under
Estelle, 502 U.S. at 71-72. See Sarausad, 479 F.3d at 689-94.
The Supreme Court has reiterated time and time again after
Williams, that a federal court cannot grant habeas relief by
undertaking a de novo review and reaching a different conclu-
sion than the state courts. See Yarborough v. Alvarado, 541
U.S. 652, 665 (2004); Woodford, 537 U.S. at 24-25. Addition-
12088 SARAUSAD v. PORTER
ally, the majority’s approach is improper because “[t]he fact
that a jury instruction is inadequate by Ninth Circuit direct
appeal standards does not mean a petitioner who relies on
such an inadequacy will be entitled to habeas relief from a
state court conviction.” Duckett, 67 F.3d at 744.
In this case, the majority, after independent review, simply
disagrees with the Washington Court of Appeals, and fails to
conduct a proper AEDPA based inquiry into the reasonable-
ness of the legal determinations concerning the propriety of
the jury instruction under Washington law.14 The majority’s
failure to recognize that the Washington Supreme Court
approved of the instruction given in this case as a correct
statement of Washington law was directly contrary to
Supreme Court precedent. See Bradshaw, 546 U.S. at 78
(holding that failure to credit Ohio Supreme Court’s pro-
nouncement that the doctrine of transferred intent applied to
felony murder by reaching the opposite conclusion was error).
By deciding to conduct a de novo review of the jury instruc-
tion and Washington’s accomplice liability law instead of
applying the deferential AEDPA standards, the panel majority
compounds its mistake and reaches a result contrary to
Supreme Court and our own precedents.
CONCLUSION
This case shows a lack of respect for the state courts that
violates the principles of federalism and our traditional defer-
ence to the states’ highest courts to interpret state law. The
panel majority misinterprets Washington’s accomplice liabil-
ity statute and Washington Supreme Court case law concern-
ing the accomplice liability jury instructions given in
14
Even if the Washington Court of Appeals was wrong in its application
of Washington law, writs of habeas corpus are not available for alleged
errors in the interpretation or application of state law. Peltier v. Wright,
15 F.3d 860, 861 (9th Cir. 1993) (quoting Middleton v. Cupp, 768 F.2d
1083, 1085 (9th Cir. 1985)).
SARAUSAD v. PORTER 12089
Sarausad’s case. As a result, the entire premise of the panel
majority’s affirmance of the grant of habeas corpus is flawed.
In addition, the panel majority’s failure to follow the Supreme
Court’s instructions on how to apply AEDPA compounds its
initial mistake in attempting to interpret Washington’s accom-
plice liability statute. Finally, the panel majority’s approach to
the Washington Court of Appeals’ harmless error analysis
conflicts with our prior approach in Medina v. Hornung, 372
F.3d 1120, 1126 (9th Cir. 2004), and the Supreme Court’s
mandate in Mitchell v. Esparza, 540 U.S. at 17. Therefore, I
dissent from our decision not to rehear this case en banc.
PRINTED FOR
ADMINISTRATIVE OFFICE—U.S. COURTS
BY THOMSON/WEST—SAN FRANCISCO
The summary, which does not constitute a part of the opinion of the court, is copyrighted
© 2007 Thomson/West.