Gregory Powell v. D.L. Runnels

FILED
NOT FOR PUBLICATION JUL 18 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREGORY ANTHONY POWELL, No. 12-15608
Petitioner - Appellant, D.C. No. 2:09-cv-01598-MCE-
TJB
v.
D. L. RUNNELS, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief District Judge, Presiding
Argued and Submitted July 9, 2014
San Francisco, California
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.
We review a petition for a writ of habeas corpus de novo, giving deference
to the state court’s factual findings and reviewing the district court’s factual
findings for clear error. Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000)
(en banc).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
“An application for a writ of habeas corpus on behalf of a person in custody
pursuant to the judgment of a State court” may only be granted where
the adjudication of the claim (1) 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; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.
28 U.S.C. § 2254(d).
I.
The California Court of Appeal’s conclusion—that the state trial court had
not violated Powell’s Sixth Amendment jury trial right by relying on Powell’s
parole status as an aggravating circumstance warranting upper term
sentences—was not “an unreasonable application” of Supreme Court precedent.1
See Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011). At the time the
California Court of Appeal reached its decision, the Supreme Court had not spoken
on the breadth of the prior conviction exception in Apprendi, 530 U.S. at 490, and
1
Though the upper term sentence on the personal use of a firearm
enhancement was clearly based on Powell’s parole status at the time, the upper
term sentence for attempted voluntary manslaughter may not have been. However,
to the extent it wasn’t, the upper term sentence for attempted voluntary
manslaughter was nevertheless based on facts found by the jury, including the use
of a firearm and the threat of great bodily injury. Thus, this was not error under
Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).
-2-
the circuits were split on whether one’s parole status fell within it. See Kessee v.
Mendoza-Powers, 574 F.3d 675, 677 (9th Cir. 2009) (“For purposes of AEDPA
review, . . . a state court’s determination that is consistent with many sister circuits’
interpretations of Supreme Court precedent, even if inconsistent with [the Ninth
Circuit’s] view, is unlikely to be ‘contrary to, or involve an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court.’”).2
II.
We grant Powell’s request for a certificate of appealability with respect to
his claim that the state trial court’s erroneous attempted voluntary manslaughter
jury instruction was prejudicial, because Powell “has made a substantial showing
of the denial of a constitutional right.” See Miller-El v. Cockrell, 537 U.S. 322, 336
(2003) (internal quotation marks omitted). All parties agree the jury instruction
was erroneous. See Dixon v. Williams, 750 F.3d 1027, 1034 (9th Cir. 2014). The
erroneous jury instruction was also constitutional error. See id. Thus, the issue is
2
Estrella v. Ollison, 668 F.3d 593 (9th Cir. 2011), is not to the contrary.
There, the state court had used the petitioner’s parole status as an aggravating
factor warranting an upper-term sentence, though not found by the jury, but it did
not do so under the weight of the “prior conviction” exception. Id. at 598; see also
Estrella v. Ollison, No. 06-1086 CJC (FFM), 2010 WL 2851878 at *5 n.7 (C.D.
Cal. June 11, 2010).
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“adequate to deserve encouragement to proceed further.” Miller-El, 537 U.S. at
336 (internal quotation marks omitted).
Nevertheless, we do not have “grave doubt” about whether the California
Court of Appeal’s decision—that the erroneous attempted voluntary manslaughter
jury instruction did not prejudice Powell—“affected [the] jury substantially and
injuriously.” Dixon, 750 F.3d at 1034 (alteration omitted).
The California Court of Appeal relied on the following facts in reaching its
conclusion: (1) the parties were focused on the murder charge at trial: the
prosecution only mentioned the attempted voluntary manslaughter possible
alternative verdict at closing in two sentences, and the defense never spoke of it at
all; and (2) the evidence that Powell was the shooter and shot Green with intent to
kill was strongly supported by the presence of two bullets in Green’s body and the
number of shots Powell fired at her. Additional facts highlighted by the federal
district court further substantiate the absence of prejudice: (1) Powell shot Green in
the back while sitting directly behind her in the car’s backseat; and (2) Powell
pursued Green and fired more shots at her after she fled the vehicle, hitting her
another time.
AFFIRMED.
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