FILED
NOT FOR PUBLICATION JAN 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS SCOTT STONE, No. 13-17313
Petitioner - Appellant, D.C. No. 1:10-cv-01335-LJO-MJS
v.
MEMORANDUM*
R. LOPEZ, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted August 11, 2015
San Francisco, California
Before: KOZINSKI and TALLMAN, Circuit Judges, and PIERSOL,** Senior
District Judge.
Petitioner-appellant Nicholas Scott Stone appeals the district court’s denial
of his 28 U.S.C. § 2254 habeas petition challenging his conviction for attempted
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lawrence L. Piersol, Senior U.S. District Judge for the
for the District of South Dakota, sitting by designation.
murder with premeditation in violation of California Penal Code §§ 664 and 187.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.
The district court did not err by holding that the state court’s determination
that Stone received constitutionally adequate notice of the attempted murder charge
was a reasonable application of clearly established federal law. See 28 U.S.C.
§ 2254(d)(1). Stone claims his defense was prejudiced when the prosecution’s
theory at trial diverged from the original complaint. But where there is a variance
between “the allegations and proof,” the inquiry is “whether there has been such a
variance as to ‘affect the substantial rights’ of the accused.” Berger v. United
States, 295 U.S. 78, 82 (1935). Under Brecht, relief is proper only if we have
“grave doubt about whether a trial error of federal law had ‘substantial and
injurious effect or influence in determining the jury’s verdict.’” O’Neal v.
McAninch, 513 U.S. 432, 436 (1995) (quoting Brecht v. Abrahamson, 507 U.S.
619, 627 (1993)).
Stone has failed to show how the information charging him with the
attempted murder of “J.F.” prejudiced his defense. At the preliminary hearing and
at trial, the prosecutor clearly argued Stone attempted to murder someone in the
group of Norteños, which included J.F. Both the preliminary hearing and the trial
testimony focused on the angle of the gun and whether Stone’s intent was to shoot
2
up in the air and scare the group, or whether Stone instead pointed the gun down
and intended to kill. Considering the similarities between the proof presented at
the preliminary hearing and the proof presented at trial, we cannot say that any
error in notice was so great as to “affect the substantial rights” of Stone or have a
“substantial and injurious effect” on the verdict. Brecht, 507 U.S. at 632 n.7.
Because the “issue in appellant’s trial was not who he intended to kill but whether
he intended to kill,” the California Court of Appeal reasonably concluded any error
was harmless. People v. Stone, No. F051812, 2009 WL 3358436, at *8 (Cal. Ct.
App. Oct. 20, 2009) (unpublished).
AFFIRMED.
3