Sutton v. Gay , 421 F. App'x 702 ( 2011 )

FILED
NOT FOR PUBLICATION MAR 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH M. SUTTON, No. 07-36019
Petitioner - Appellant, D.C. No. CV-07-05148-RBL
v.
MEMORANDUM*
JOHN GAY,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted March 7, 2011**
Seattle, Washington
Before: McKEOWN, FISHER and GOULD, Circuit Judges.
Kenneth M. Sutton petitions for habeas corpus relief after being convicted of
burglary and assault and receiving a 152-month sentence. His petition is subject to
the Antiterrorism and Effective Death Penalty Act of 1996. See Furman v. Wood,
190 F.3d 1002, 1004 (9th Cir. 1999). The district court denied Sutton’s petition.
*
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).
We review de novo, and affirm. See Beardslee v. Woodford, 358 F.3d 560, 568
(9th Cir. 2004).
Sutton was not denied a “meaningful opportunity to present a complete
defense” when the trial court refused to permit his cousin to testify. Crane v.
Kentucky, 476 U.S. 683, 690 (1986). “A defendant has no right . . . to present
irrelevant evidence,” and the excluded testimony was not relevant because it would
have established only that the victim was also assaulted by another person days
after the assault for which Sutton was charged. Wood v. State of Alaska, 957 F.2d
1544, 1549 (9th Cir. 1992); see also Holmes v. South Carolina, 547 U.S. 319, 326-
27 (2006).
The trial court did not violate the Double Jeopardy Clause by imposing two
weapon enhancements to Sutton’s sentence based on his use of the same deadly
weapon against the same victim during the commission of the separate crimes of
burglary and assault. “With respect to cumulative sentences imposed in a single
trial, the Double Jeopardy Clause does no more than prevent the sentencing court
from prescribing greater punishment than the legislature intended.” Missouri v.
Hunter, 459 U.S. 359, 366 (1983). In determining whether the Washington state
legislature intended courts to impose two weapon enhancements in cases like this
one, we are bound to accept the Washington courts’ construction of that state’s
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statutes. See id. at 368. The Washington Supreme Court explicitly stated, in
rejecting Sutton’s request for review, that the statute at issue “required” the trial
court “to impose two consecutive deadly weapon enhancements.” See also State v.
Huested, 74 P.3d 672, 673 (Wash. Ct. App. 2003) (“This statute unambiguously
shows legislative intent to impose two enhancements based on a single act of
possessing a weapon, where there are two offenses eligible for an enhancement.”).
Accordingly, there was no double jeopardy violation.
AFFIRMED.
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