Denton White v. Dwight Neven

FILED
NOT FOR PUBLICATION SEP 22 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENTON R. WHITE, No. 12-15033
Petitioner - Appellant, D.C. No. 2:09-cv-00400-KJD-
VCF
v.
DWIGHT NEVEN, Warden; ATTORNEY MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted September 8, 2014
San Francisco, California
Before: SCHROEDER, OWENS, and FRIEDLAND, Circuit Judges.
Petitioner Denton White appeals the district court’s denial of his habeas
petition. He was convicted in Nevada state court of resisting a public officer,
discharging a firearm into a structure, attempted robbery with use of a deadly
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
weapon, first-degree kidnapping with use of a deadly weapon, assault with a
deadly weapon, coercion with use of a deadly weapon, and battery with use of a
deadly weapon. He was sentenced to life with the possibility of parole. White’s
request for a certificate of appealability from this Court was granted on the
following issues: first, whether there was sufficient evidence to sustain White’s
conviction for first-degree kidnapping; second, whether jury instruction no. 12
regarding first-degree kidnapping violated White’s constitutional rights; third,
whether White’s trial counsel was ineffective in failing to object to that instruction;
and fourth, whether cumulative error rendered White’s trial fundamentally unfair.
We review the decision of the Nevada Supreme Court under the deferential
standards of the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254.
The Nevada Supreme Court found the evidence was sufficient to support the
kidnapping conviction, and its conclusion was not an unreasonable application of
federal law. See id. at § 2254(d)(1).
White contends that jury instruction no. 12 was not in accord with the
Nevada Supreme Court’s later decision in Mendoza v. State, 130 P.3d 176 (Nev.
2006), and that the jury was therefore not required to find all of the elements of the
crime in violation of federal due process. See In re Winship, 397 U.S. 358, 364
(1970). The Nevada Supreme Court held, however, that the instruction given was
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in accord with Mendoza. White nevertheless contends that, contrary to Mendoza,
the instruction permitted the jury to find kidnapping solely on the basis of restraint,
and in the absence of any increased risk of harm.
Even assuming the Nevada Supreme Court was mistaken in holding that the
instruction satisfied Mendoza, and that such a mistake amounted to a violation of
federal law, any error was harmless. The record reflects that White moved the
victim from one location to another in the apartment at gunpoint. The prosecutor,
in closing argument, stressed that such conduct resulted in an increased risk of
harm. On the basis of this record, the jury would have had to have found the
requisite elements of kidnapping under Mendoza, including increased risk of harm.
We cannot hold that counsel was ineffective in failing to object to the
instruction. Its language was supported by existing Nevada authority. See
Hutchins v. State, 867 P.2d 1136, 1140 (Nev. 1994). The Nevada Supreme Court
later clarified the law in Mendoza.
Because White has failed to demonstrate more than one error, there can be
no cumulative error to support granting the writ.
Petitioner’s unopposed motion to take judicial notice is GRANTED.
The judgment of the district court is AFFIRMED.
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