Opinion
No. 07-35681.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 3, 2010.
Robert Harris Gombiner, Esquire, Assistant Federal Public Defender, FPDWA — Federal Public Defender's Office, Western District of Washington, Seattle, WA, for Petitioner-Appellant.
Larry Ray Morrison, pro se.
Ronda Denise Larson, Esquire, AGWA — Office of the Washington Attorney General, Olympia, WA, for Respondent-Appellee.
Appeal from the United States District Court for the Western District of Washington, Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-06-01609-TSZ.
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Washington state prisoner Larry Ray Morrison appeals from the district court's judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Morrison contends the trial court violated his due process rights when it instructed the jury that the phrase "on or about January 31, 2002," as stated in the information, meant the charged offense could have occurred at any point in the three years preceding the date Morrison was charged. Morrison has not shown that the state court's rejection of this claim was either contrary to, or an unreasonable application of, clearly established federal law, or that it was based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). Even though the supplemental instruction was erroneous under state law, the record indicates it did not have a "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) ( quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see California v. Roy, 519 U.S. 2, 4-6, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam) (applying harmless error standard to jury instructions that omit an element of the crime).
AFFIRMED.