Cesar Sarausad v. Carol Porter

FILED
NOT FOR PUBLICATION JUL 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CESAR SARAUSAD, No. 10-35226
Petitioner - Appellant, D.C. No. 2:02-cv-02547-JCC
v.
MEMORANDUM *
DOUG WADDINGTON,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted June 21, 2011
Pasadena, California
Before: REINHARDT, W. FLETCHER, and BYBEE, Circuit Judges.
On remand from the Supreme Court, Sarausad renewed the two arguments in
his habeas petition that had not yet been decided. The district court rejected both
arguments. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Sarausad argues that Washington’s accomplice liability statute failed to give
him adequate notice that he could be found guilty of murder for aiding in the
commission of a drive-by shooting, in violation of the Fourteenth Amendment’s
due process clause. It is well-settled that a person cannot be held “criminally
responsible for conduct which he could not reasonably understand to be
proscribed.” United States v. Harriss, 347 U.S. 612, 617 (1954). In challenging
the statute for vagueness, Sarausad has the burden to show that it was
unconstitutionally vague as applied to him. United States v. Davis, 36 F.3d 1424,
1434 (9th Cir. 1994). The Supreme Court’s decision in this case forecloses
Sarausad’s argument. Under the Supreme Court’s reading of Washington’s
accomplice liability statute and the paralleling jury instruction, the jury found that
Sarausad knowingly facilitated a murder, not some other crime. Waddington v.
Sarausad, 555 U.S. 179, 191-92 (2009). The accomplice statute, as interpreted by
the Supreme Court, gave fair warning that Sarausad could be convicted of murder
and attempted murder if he knowingly facilitated a murder. See Rev. Code Wash.
§ 9A.08.020(3)(a).
Sarausad also argues that the Fourteenth Amendment’s equal protection
clause was violated because he was convicted of murder with less evidence of
intent than was required to convict the principal. Because the Washington courts
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did not rule on this argument, we do not review it under the deferential AEDPA
standard. Luna v. Cambra, 306 F.3d 954, 960-61 (9th Cir.), amended by 311 F.3d
928 (9th Cir. 2002). However, Sarausad’s argument is foreclosed by Teague v.
Lane, 489 U.S. 288 (1989). Under Teague, we may not announce a new rule of
law on habeas review, id. at 310, and Sarausad points to no extant caselaw holding
that such a conviction violates the equal protection clause.
AFFIRMED.
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