FILED
NOT FOR PUBLICATION SEP 17 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRANDON ARMITAGE, No. 11-55873
Petitioner - Appellant, D.C. No. 3:09-cv-00463-L-POR
v.
MEMORANDUM*
KENNETH CLARK, Warden and JERRY
BROWN, Attorney General of the State of
California,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
M. James Lorenz, Senior District Judge, Presiding
Argued and Submitted August 7, 2014
Pasadena, California
Before: WARDLAW, CALLAHAN, and M. SMITH, Circuit Judges.
Brandon Armitage (“Armitage”) appeals from the District Court’s denial of
his habeas petition challenging his California conviction for burglary. Armitage
asserts that his case was submitted to the jury on alternate theories, one of which
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
was unconstitutional, and that the California Court of Appeal’s rejection of his
argument was contrary to clearly established federal law. We have jurisdiction
pursuant to 28 U.S.C. § 2253 and we affirm.1
Under the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), federal habeas corpus relief is barred unless a state court’s
adjudication of a claim was either (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) “‘based on an unreasonable determination of
the facts in light of the evidence presented in the State Court proceeding.’”
Harrington v. Richter, 131 S. Ct. 770, 783–84 (2011) (quoting 28 U.S.C. §
2254(d)(1)-(2)).
Armitage contends that the jury was permitted to premise its conviction on a
determination that his admitted possession of methamphetamine constituted the
underlying felony charge for his burglary conviction. The California Court of
Appeal, however, found that the jury instructions, as well as the trial judge’s
responses to inquiries from the jury, properly directed the jury that in order to
convict Armitage of burglary it had to find that he entered the garage with the
specific intent to steal.
1
Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
Although the jury instructions included an accurate, general definition of the
crime of burglary, all of the instructions concluded with the requirement that the
jury find that Armitage had a specific intent to steal. In response to the jury’s first
note, the trial judge responded that ‘[t]he theory advanced by the district attorney is
that the defendant entered an inhabited dwelling house with the specific intent to
steal, not to commit any other crime.” In response to the jury’s second inquiry, the
trial judge referred the jury to the definition of burglary set forth in the written
instructions. We view Armitage’s assertions “in the context of the instructions as a
whole and the trial record.” Estelle v. McGuire, 502 U.S. 62, 72 (1991). In
addition, we presume that the jury followed the instructions. Weeks v. Angelone,
528 U.S. 225, 234 (2000). Having reviewed all the materials, we conclude that
Armitage has not shown that the California Court of Appeal unreasonably found
that the jury instructions as a whole required that the jury find that he entered the
garage with the intent to steal. Accordingly, he is not entitled to relief under
AEDPA.
Because Armitage has not shown that the California Court of Appeal erred
in determining that the case was not submitted to the jury on alternate theories, we
do not reach his arguments concerning the application of Boyde v. California, 494
U.S. 370, 379–80 (1990) (reiterating that “when a case is submitted to the jury on
alternative theories the unconstitutionality of any of the theories requires that the
conviction be set aside”).
AFFIRMED.