FILED
NOT FOR PUBLICATION AUG 25 2010
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONNY DAVID WAGGONER,
No. 08-55168
Petitioner- Appellant,
D.C. No. CV- 05-798-GPS
v.
MEMORANDUM*
ROBERT J. HERNANDEZ, Warden,
Respondent-Defendants.
Appeal from the United States District Court
for the Central District of California
George P. Schiavelli, District Judge, Presiding
Argued and Submitted August 6, 2010
San Francisco, California
Before: THOMAS and SILVERMAN, Circuit Judges, and FOGEL, District
Judge**
Donny David Waggoner appeals the district court’s denial of his petition for
a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Waggoner seeks relief from
his state court conviction for possession of pseudoephedrine with the intent to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
manufacture methamphetamine (Cal. Health & Saf. Code § 11383(c) (2002)), and
possession of methamphetamine for sale (Cal. Health & Saf. Code § 11378
(2002)). We have jurisdiction pursuant to 28 U.S.C. § 1291.1 We review de novo
the district court’s denial of a habeas petition. Musladin v. Lamarque, 555 F.3d
830, 835 (9th Cir. 2009). We affirm in part, reverse in part, and remand.
We conclude that, even if the evidence in the record is viewed in the light
most favorable to the prosecution, no rational trier of fact could have found that
evidence sufficient to establish beyond a reasonable doubt each of the elements of
possession of pseudoephedrine with the intent to manufacture methamphetamine.
See Jackson v. Virginia, 443 U.S. 307, 324 (1979) (“[T]he applicant is entitled to
habeas corpus relief if it is found that upon the record evidence adduced at trial no
rational trier of fact could have found proof of guilt beyond a reasonable doubt.”).
There was no evidence that Waggoner himself intended to manufacture
methamphetamine; at most the record supported an inference that Waggoner
intended to trade cold medicine containing pseudoephedrine to a
methamphetamine manufacturer in return for money or drugs. The state court
concluded that this inference was sufficient to support Waggoner’s conviction.
1
We construe Waggoner’s application to proceed on appeal in forma
pauperis as a timely notice of appeal. See Wilborn v. Escalderon, 789 F.2d 1328,
1330 (9th Cir. 1986) (motion to proceed in forma pauperis construed as notice of
appeal).
2
However, under California law Waggoner’s intent to sell or trade cold medicine to
a third party is insufficient to render Waggoner guilty as an aider and abettor
absent proof of a criminal act by the third party. See People v. Perez, 35 Cal. 4th
1219, 1225 (2005) (“[F]or a defendant to be found guilty under an aiding and
abetting theory, someone other than the defendant must be proven to have
attempted or committed a crime; i.e., absent proof of a predicate offense,
conviction on an aiding and abetting theory cannot be sustained.”).2 Thus the state
court’s conclusion was contrary to, or an unreasonable application of, Jackson, and
the district court erred in ruling otherwise.
We agree with Waggoner that he is not procedurally defaulted from
asserting his remaining claims, which are based upon the testimony of the
prosecution’s expert and the prosecutor’s reference to that testimony during
closing argument. The state has waived its procedural default argument by raising
it for the first time on appeal. See Slovik v. Yates, 556 F.3d 747, 751 n.4 (9th Cir.
2009) (state forfeited its procedural default argument raised for the first time in a
petition for rehearing) Franklin v. Johnson, 290 F.3d 1223, 1229-32 (9th Cir.
2002) (state waived its procedural default argument raised for the first time on
2
Although Perez issued after Waggoner’s conviction, the decision expressly
“clarif[ies] the scope of aiding and abetting liability, as well as the scope of section
11383.” Perez, 35 Cal. 4th at 1225.
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appeal).
However, we agree with the district court’s conclusion that the state court’s
rejection of Waggoner’s remaining claims was not contrary to, or an unreasonable
application of, clearly established Supreme Court authority. The state court
concluded correctly that trial counsel failed to object to the expert’s opinion that
Waggoner harbored an intent to manufacture methamphetamine, but rather
objected only to some – but not all – of the bases for that opinion.
Even if the state court had made a factual error as to the scope of trial
counsel’s objections, such error could not be considered “an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding,” see Musladin, 555 F.3d at 834 (citing 28 U.S.C. § 2254(d)); the trial
transcript is at the very least susceptible of the interpretation given it by the state
appellate court. To the extent that Waggoner is attempting to assert a freestanding
argument that the expert’s testimony invaded the province of the jury, Waggoner
fails to cite any United States Supreme Court case holding that an expert may not
offer an opinion regarding the ultimate issue to be decided by the trier of fact.
Accordingly, we affirm in part, reverse in part, and remand to the district
court for further proceedings.3
3
We note that because Waggoner received concurrent prison terms for his
conviction on counts one (possession of pseudoephedrine with the intent to
4
AFFIRMED in part; REVERSED in part; and REMANDED.
Each party shall bear its own costs on appeal.
manufacture methamphetamine) and two (possession of methamphetamine for
sale), this disposition will have no practical effect on Waggoner’s sentence.
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