FILED
NOT FOR PUBLICATION JUN 16 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRANDON SUTTON, No. 08-35822
Petitioner - Appellant, D.C. No. 2:07-cv-01462-MJP
v.
MEMORANDUM *
DOUG WADDINGTON,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted June 9, 2010
Seattle, Washington
Before: CANBY, CALLAHAN and IKUTA, Circuit Judges.
Washington prisoner Brandon Sutton appeals the district court’s denial of
his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We have
jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
We review de novo the district court’s denial of Sutton’s habeas petition.
See, e.g., Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). The Antiterrorism and
Effective Death Penalty Act (“AEDPA”) applies to this case, so we may grant
relief only if “the state court adjudication of the merits of a claim ‘(1) resulted in a
decision that was 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.’” Id. (quoting
28 U.S.C. § 2254(d)).
We reject Sutton’s argument that the information charging him with felony
murder was constitutionally insufficient because it did not contain the elements of
the three predicate felonies. As Sutton acknowledges, no Supreme Court case has
addressed whether a felony murder charging document must state the elements of
the predicate felony, so the state court’s decision could not have been “contrary to”
clearly established federal law as determined by the Supreme Court. Nor are we
persuaded that the state court’s decision was an unreasonable application of any of
the Supreme Court cases upon which Sutton relies. See, e.g., Apprendi v. New
Jersey, 530 U.S. 466 (2000); Hamling v. United States, 418 U.S. 87 (1974); Cole v.
Arkansas, 333 U.S. 196 (1948). Sutton’s reliance on our decision in Kreck v.
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Spalding, 721 F.2d 1229 (9th Cir. 1983), also is unavailing. We cannot overturn a
state conviction on habeas review on the basis of a conflict with Ninth Circuit law,
see, e.g., Bradway v. Cate, 588 F.3d 990, 992 (9th Cir. 2009), and Kreck has no
persuasive value because it was decided before the enactment of AEDPA’s
deferential standard of review and its holding was not required by any clearly
established Supreme Court precedent.
We also reject Sutton’s claim that he was denied a fair trial as a result of
prosecutorial misconduct during closing argument. Even if the prosecutor’s
remarks were improper, they did not render Sutton’s trial so unfair that he was
denied due process under the standards set forth in Darden v. Wainwright, 477
U.S. 168, 178-83 (1986), and Donnelly v. DeChristoforo, 416 U.S. 637, 643-45
(1974). The state court’s decision was not contrary to or an unreasonable
application of either Darden or Donnelly.
The district court’s denial of Sutton’s habeas petition is
AFFIRMED.
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