Opinion
No. 09-17596.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed February 17, 2011.
John J. Jordan, Law Office of John J.
Jordan, San Francisco, CA, for Petitioner-Appellant.
James Washington, Blythe, CA, pro se.
Jeremy Friedlander, Deputy Attorney General, AGCA — Office of the California Attorney General, San Francisco, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Northern District of California, Susan Illston, District Judge, Presiding. D.C. No. 3:06-cv-04490-SI.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
James Washington, a California state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his jury conviction of firearm possession by a felon. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
I
Washington alleges that he was denied a fair trial because the state trial court failed to sua sponte instruct the jury on his intent to exercise control over the firearm. To prevail on this claim on federal habeas review, Washington must show that the challenged instruction "so infected the entire trial that the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). Because Washington's alleged error is the failure to give an instruction, he faces an "especially heavy" burden. Hendricks v. Vasquez, 974 F.2d 1099, 1106 (9th Cir. 1992) (quoting Henderson v. Kibbe, 431 U.S. 145, 155, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977)).
In this case, the California Court of Appeal noted "the fact that the jury was instructed as to the elements of intent, possession, control, and knowledge," and that the "instructions as given . . . stressed that [Washington] must have knowingly exercised control over the firearm." People v. Washington, No. 134330, at *22 (Cal. Ct.App. filed July 28, 2003). Accordingly, as the district court properly held, "Washington has not shown that any instructional error was committed, let alone that any such error so infected the trial that the resulting conviction violated due process." Washington v. Ollison, No. C 06-4490, at * 19 (N.D. Cal. filed Sept. 23, 2009).
II
Washington alleges that statements made by the prosecutor compounded the error in the jury instructions by planting in the jury's mind "the improper concept that Washington's awareness of the gun equaled possession, even without control or intent to control." However, given that there was no instructional error, this claim fails.
Washington also argues that his trial counsel was ineffective for failing to request additional jury instructions and for failing to object to the prosecutor's allegedly inaccurate and prejudicial statements. Given that there was no instructional error or prosecutorial misconduct, trial counsel did not act unreasonably in failing to object. Because the record refutes the applicant's factual allegations of instructional error or prosecutorial misconduct, an evidentiary hearing is not required to determine whether trial counsel acted unreasonably. Schriro v. Landrigan, 550 U.S. 465, 468, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).
The district court properly granted denied the petition.