Troches v. Terhune

Full title: Miguel TROCHES, Petitioner--Appellant, v. Cal A. TERHUNE, Director…

Court: United States Court of Appeals, Ninth Circuit

Date published: Aug 13, 2003

74 F. App'x 736 (9th Cir. 2003)

Opinion

74 Fed.Appx. 736 (9th Cir. 2003) Miguel TROCHES, Petitioner--Appellant, v. Cal A. TERHUNE, Director, Department of Corrections, Respondent--Appellee. No. 02-56873. D.C. No. CV-98-03011-WDK. United States Court of Appeals, Ninth Circuit. August 13, 2003

Argued and Submitted August 5, 2003.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Petitioner sought federal habeas corpus relief. The United States District Court for the Central District of California, William D. Keller, J., denied relief. Petitioner appealed. The Court of Appeals held that allowing amendment of information to include second-degree burglary charge did not support habeas relief.

Petition denied.

Appeal from the United States District Court for the Central District of California, William D. Keller, District Judge, Presiding.

Before ALDISERT, ^* TALLMAN, and RAWLINSON, Circuit Judges.

* The Honorable Ruggero J. Aldisert, Senior United States Circuit Judge for the Third Circuit, sitting by designation.

Page 737.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

In his habeas petition, Miguel Troches contended that the state trial court committed constitutional error by allowing the amendment of the information to include a second-degree burglary charge. Troches, however, failed to demonstrate that the state court's decision was contrary to or an unreasonable application of clearly established United States Supreme Court precedent. See Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003). Neither Cole v. Arkansas, 333 U.S. 196, 68 S.Ct. 514, 92 L.Ed. 644 (1948), nor In re Oliver, 333 U.S. 257, 68 S.Ct. 499, 92 L.Ed. 682 (1948), foreclose the premise that constitutionally adequate notice may come from evidence presented at trial. See Stephens v. Borg, 59 F.3d 932, 936 (9th Cir.1995).

Troches' case is distinguishable from Gray v. Raines, 662 F.2d 569 (9th Cir.1981). Unlike the defendant in Gray, Troches could not claim that his intent to commit burglary was his "entire defense." See id. at 573. Rather, Troches' testimony was an admission that supported amendment of the information, since California law permits the amendment of an information at any point in the proceedings. See Cal.Penal Code § 1009. The trial testimony and evidence therefore provided constitutionally adequate notice of the burglary charge. See Murtishaw v. Woodford, 255 F.3d 926, 954 (9th Cir.2001) (citation omitted).

PETITION DENIED.