Quincy Robertson v. James Walker

FILED
NOT FOR PUBLICATION
DEC 16 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
QUINCY ROBERTSON, No. 16-15075
Petitioner-Appellant, D.C. No. 4:10-cv-02633-PJH
v.
MEMORANDUM*
JAMES WALKER, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Submitted December 14, 2016**
San Francisco, California
Before: O’SCANNLAIN, GOULD, and M. SMITH, Circuit Judges.
Quincy Robertson, a California state prisoner, appeals the denial of his 28
U.S.C. § 2254 habeas corpus petition challenging his conviction by jury trial for
second degree murder and assault with a firearm. Robertson argues his conviction
*
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).
should be vacated because he was prejudiced by improper jury instructions. We
disagree, and affirm the district court’s decision denying his petition.
Robertson was convicted of the second degree murder of Kehinde Riley, and
assault with a deadly weapon and by means of force likely to inflict great bodily
injury of Ricky Harris, on February 7, 2011. Cal. Penal Code §§ 187–89,
245(a)(1). The jury was instructed that “it could convict [Robertson] of second
degree murder on a felony murder theory based on his commission of the offense
of grossly negligent discharge of a firearm (Pen. Code, § 246.3).” People v.
Robertson, 1 Cal. Rptr. 3d 353, 355 (Cal. Ct. App. 2003).
On direct appeal, a California appellate court affirmed the conviction,
finding that the jury instructions were erroneous because the offense of grossly
negligent discharge of a firearm merges with the resulting homicide and thus
cannot serve as a predicate offense for second degree murder, but that any error
was harmless. Id. The California Supreme Court affirmed the conviction on
different grounds, concluding that “the merger doctrine did not bar instruction on
second degree murder based upon a felony-murder theory.” People v. Robertson,
34 Cal. 4th 156, 160 (2004).
On March 30, 2009, the California Supreme Court overruled Robertson in
People v. Chun. 45 Cal. 4th 1172, 1201 (2009) (“We overrule People v. Robertson
2
. . . .”). Chun held that “all assaultive-type crimes . . . merge with the charged
homicide and cannot be the basis for a second degree felony-murder instruction.”1
Id. at 1178. Robertson filed a petition for a writ of habeas corpus with the
California Supreme Court shortly after Chun, claiming he was prejudiced by the
faulty jury instructions given at trial. The Court denied his petition with a one-
sentence ruling. Oct. 14, 2009 Order, No. S172768 (Cal.) (“The petition for writ of
habeas corpus is denied.”). Robertson then filed a writ of habeas corpus in the
federal district court, which heard the case on the merits and issued a decision
denying the petition on January 15, 2016. Robertson v. Walker, No.
10-cv-02633-PJH, 2016 WL 192568 (N.D. Cal. Jan. 15, 2016). The district court
granted a certificate of appealability, id. at 16, and Robertson appealed.
We review the district court’s decision de novo. Lopez v. Thompson, 202
F.3d 1110, 1116 (9th Cir. 2000) (en banc). However, the California Supreme
Court’s 2009 decision rejecting Robertson’s habeas petition is reviewed with great
deference because this case is governed by the Antiterrorism and Effective Death
Penalty Act (AEDPA). Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).
1
The predicate offense in Chun was shooting at an occupied vehicle, 45 Cal.
4th at 1178, not grossly negligent discharge of a firearm (the predicate offense in
Robertson). However, the government does not dispute that grossly negligent
discharge of a firearm qualifies as “assaultive” for purposes of the merger rule
under Chun.
3
To prevail, Robertson must show that the decision 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).
The 2009 decision denying Robertson’s habeas petition was a decision on
the merits. Harrington v. Richter, 562 U.S. 86, 96, 100 (2011). We must determine
what arguments could have supported its decision. Id. at 102. The California
Supreme Court could have denied Robertson’s petition for one of two reasons—(1)
the Chun rule did not apply when Robertson’s conviction became final in 2004; or
(2) the Chun rule does apply in Robertson’s case, but any instructional error was
harmless. Either of these reasons suffices to affirm the district court’s decision
under AEDPA’s deferential standard of review.
Robertson argues that California only clarified the elements of murder as
defined by statute, and no new legal rule was created.2 Citing Bunkley v. Florida,
he argues a due process violation occurs if a state does not apply a clarified version
of a statute to final convictions pre-dating the clarification. 538 U.S. 835, 840
(2003). Robertson misreads Bunkley. The Supreme Court just remanded a case to
the Florida Supreme Court to consider whether its first-time interpretation of a
2
There is no dispute that if California did create a new legal rule in Chun, no
Supreme Court decision would require California to apply this new rule
retroactively. See Moore v. Helling, 763 F.3d 1011, 1021–22 (9th Cir. 2014).
4
criminal statute stated the law as it existed when Bunkley’s (the petitioner)
conviction became final. Bunkley, 538 U.S. at 842. And on remand, the Florida
Supreme Court concluded that despite the same statute having existed since 1901,
the law was different when Bunkley’s conviction became final. Bunkley v. Florida,
882 So.2d 890, 894 (Fla. 2004). Thus, no federal law prevents the California
Supreme Court from deciding that Chun states the correct interpretation of a statute
now, while a different interpretation controlled when Robertson’s conviction
became final. See id.Even assuming error, an independent review of the record shows that any
error was harmless. Morales v. Woodford, 388 F.3d 1159, 1171 (9th Cir. 2003).
We apply the Brecht v. Abrahamson test, asking whether any error “had substantial
and injurious effect or influence in determining the jury’s verdict.” 507 U.S. 619,
637 (1993) (internal quotation marks omitted). The district court correctly relied on
the overwhelming evidence of either express or implied malice in concluding any
error was harmless. Robertson, 2016 WL 192568, at *8–16. Additionally, we are
persuaded by the California Court of Appeal’s reasoning that the conviction for
assaulting Harris demonstrates that “the jury must have rejected appellant’s
defense,” and that the jury must have believed Robertson possessed either express
or implied malice. Robertson, 1 Cal. Rptr. 3d at 373. For similar reasons, we reject
5
the argument any error would have prejudiced Robertson by depriving him of his
asserted affirmative defenses.
AFFIRMED.
6