Kenneth Moyer v. Joe McGrath

FILED
NOT FOR PUBLICATION JUN 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
KENNETH R. MOYER No. 08-17322
Petitioner - Appellant, D.C. No. 3CV-S-03-01719
JAM/JFM
v.
JOE McGRATH, Warden MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez , District Judge, Presiding
Argued and Submitted April 12, 2010
San Francisco, California
Before: SCHROEDER and N.R. SMITH, Circuit Judges, and MOODY, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable James Maxwell Moody, Senior United States District
Judge for the Eastern District of Arkansas, sitting by designation.
1
Kenneth R. Moyer appeals the denial by the district court of his petition for a
writ of habeas corpus. The district court had jurisdiction under 28 U.S.C. § 2254,
and we have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review the district
court’s decision de novo. See Burnett v. Lampert, 432 F.3d. 996, 997 (9th Cir.
2005). We affirm.
Petitioner was convicted of murdering his wife and sentenced to life
imprisonment without parole. Petitioner contends that his conviction violated his
right to due process because his counsel failed to request, and the trial court failed
to give, an accomplice testimony instruction pursuant to California Penal Code
§ 1111. California Penal Code § 1111 provides that “[a] conviction can not be had
upon the testimony of an accomplice unless it be corroborated by such other
evidence as shall tend to connect the defendant with the commission of the offense.
. . .”
Petitioner relies on the out of circuit case of Dubois v. Lockhart, 859 F.2d
1314 (8th Cir. 1988), where there was no corroboration of accomplice testimony in
a first trial and hence double jeopardy in the retrial, because insufficient evidence
doomed the first. This court agrees that uncorroborated testimony of an
accomplice can be so suspect as to fail to provide sufficient evidence to support a
conviction. See Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000)
2
(uncorroborated accomplice testimony can sustain a conviction under federal law
and the Constitution so long as it is “neither incredible nor insubstantial on its
face.”). In petitioner’s case there was ample corroboration of his guilt including,
but not limited to, the insurance policy that became effective the day of the murder,
petitioner’s attempt to bribe a local workman to give a false statement to the police,
petitioner’s attempted escape, and the blood on the floor that petitioner described
as cherry cough syrup.
The judgment of the district court is AFFIRMED.
3