Thomas Applegate v. Kathleen Dickenson , 588 F. App'x 557 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 12 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS ARTHUR APPLEGATE, No. 12-17401
Petitioner - Appellant, D.C. No. 5:10-cv-04774-EJD
v.
MEMORANDUM*
KATHLEEN DICKENSON,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward J. Davila, District Judge, Presiding
Submitted December 10, 2014**
San Francisco, California
Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.
Thomas Arthur Applegate appeals the district court’s September 24, 2012
denial of his petition for habeas corpus. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), federal courts must refuse to grant habeas relief unless the last
reasoned state court decision was (1) “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d). Neither party has claimed that the
last reasoned state court decision in this case, the decision of the California Court
of Appeal, was “based on an unreasonable determination of the facts.” 28 U.S.C. §
2254(d)(2). Therefore, the only question before us is whether the California Court
of Appeal’s 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)(1).
The Supreme Court has established that incorrect or vague jury instructions
are grounds for habeas relief only if the error “so infected the entire trial that the
resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72
(1991) (internal quotation marks omitted). Due process is violated when there is a
“reasonable likelihood that the jury has applied the challenged instruction in a way
that violates the Constitution.” Id. (internal quotation marks omitted). “[N]ot
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every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level
of a due process violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004).
Rather, the challenged instruction must be evaluated in context. Estelle, 502 U.S.
at 72. The Supreme Court explained:
Analysis must focus initially on the specific language
challenged, but the inquiry does not end there. If a
specific portion of the jury charge, considered in
isolation, could reasonably have been understood as
creating a presumption that relieves the State of its
burden of persuasion on an element of an offense, the
potentially offending words must be considered in the
context of the charge as a whole. Other instructions
might explain the particular infirm language to the extent
that a reasonable juror could not have considered the
charge to have created an unconstitutional presumption.
Francis v. Franklin, 471 U.S. 307, 315 (1985) (emphasis added).
The Court of Appeal’s application of Supreme Court precedent was not
unreasonable. The court looked not only at the challenged instruction, but also at
the instructions as a whole. The court then, as mandated by Estelle, examined
whether there was a reasonable likelihood that the jury had applied the challenged
instruction in a way that violates the Constitution. Considering whether “[o]ther
instructions might explain the particular infirm language to the extent that a
reasonable juror could not have considered the charge to have created an
unconstitutional presumption,” see Francis, 471 U.S. at 315, the court concluded:
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[although] the portion of CALCRIM No. 3450 . . . “could
be misleading” in isolation, the parties do not dispute that
the remaining instructions accurately stated the law on
insanity. The instructions made clear that “[r]egardless
of its duration, legal insanity which existed at the time of
the commission of the crime is a defense to the crime.”
[CALJIC No. 4.03.] Considering the charge to the jury
in its entirety, we conclude that no reasonable juror
would have misconstrued the instructions.
People v. Applegate, No. A118980, 2009 WL 1611724, at *7 (Cal. Ct. App. June
10, 2009) (first alteration in original) (citation omitted). Because a reasonable
jurist could conclude that the jury instructions as a whole did not create an
unconstitutional presumption of sanity, the Court of Appeal’s decision was not
unreasonable. Thus, habeas relief is inappropriate.
AFFIRMED.
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