FILED
NOT FOR PUBLICATION
MAR 08 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD JOSEPH BERRY, No. 14-17074
Petitioner - Appellant, D.C. No. 2:10 cv-00305 JKS
v.
MEMORANDUM*
FRANCISCO JACQUEZ, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, Senior District Judge, Presiding
Argued and Submitted February 10, 2016
San Francisco, California
Before: TASHIMA and W. FLETCHER, Circuit Judges, and
GETTLEMAN,** Senior District Judge.
Donald Berry appeals the district court’s dismissal of his 28 U.S.C. § 2254
petition for a writ of habeas corpus challenging his California state court
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Robert W. Gettleman, Senior United States District
Judge for the Northern District of Illinois, sitting by designation.
conviction for second-degree murder. We have jurisdiction pursuant to 28 U.S.C.
§§ 1291 and 2253(a), and we affirm.
Berry’s charges arose from a violent altercation that led to the death of his
live-in girlfriend, Lorraine Wine. The trial court instructed the jury on the felony-
murder rule, even though Berry’s other charged offenses – infliction of corporal
injury on a cohabitant and assault with a firearm – cannot serve as predicate
felonies for felony murder under California’s merger doctrine. See People v.
Chun, 203 P.3d 425, 443 (Cal. 2009). Berry contends that the instruction violated
his right to due process and that trial counsel was ineffective for failing to object to
the instruction. When examining an allegedly erroneous jury instruction in a
habeas proceeding, an appellate court first considers whether the error amounted to
constitutional error. Dixon v. Williams, 750 F.3d 1027, 1032 (9th Cir. 2014). If
the error was constitutional in nature, “the court then considers whether the error
was harmless.” Evanchyk v. Stewart, 340 F.3d 933, 939 (9th Cir. 2003) (citation
omitted).
“Due process requires that jury instructions in criminal trials give effect to
the prosecutor’s burden of proving every element of the crime charged beyond a
reasonable doubt.” Townsend v. Knowles, 562 F.3d 1200, 1209 (9th Cir. 2009)
(citation omitted), abrogated on other grounds by Walker v. Martin, 562 U.S. 307
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(2011). By allowing the jury to convict Berry for murder based on a finding that
the death occurred during the commission of a felony dangerous to human life, the
instruction obviated the jury’s need to find malice before convicting Berry of
second-degree murder.
However, any error was harmless under the governing Brecht test because
Berry cannot establish “actual prejudice.” See Brecht v. Abrahamson, 507 U.S.
619, 637 (1993). The jury made other, non-murder findings that were not affected
by the felony-murder instruction. Specifically, the jury found Berry guilty of
infliction of corporal injury and assault with a firearm and found true the special
allegations that Berry personally used a firearm and inflicted great bodily injury in
the commission of these felonies. The jury also found true the special allegation
that Berry personally used a shotgun in the commission of the murder. These
findings, coupled with the specific facts of this case, establish that the jury
necessarily found that Berry acted with conscious disregard for Wine’s life.
Because the jury found implied malice, the potential harm posed by the
felony-murder instruction never materialized. Any error was therefore harmless,
and Berry’s due process claim fails. For the same reason, Berry cannot
demonstrate the requisite prejudice under Strickland v. Washington, 466 U.S. 668,
687 (1984); thus, his ineffective assistance of counsel claim also fails. See
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Shackleford v. Hubbard, 234 F.3d 1072, 1080 (9th Cir. 2000) (“We need not
consider whether Shackleford’s counsel’s representation fell below an objective
standard of reasonableness because, in light of our foregoing [due process]
analysis, Shackleford cannot show prejudice.”).
Berry has also briefed two other issues not encompassed by the certificate of
appealability (“COA”): (1) A due process claim based on the “mutual combat”
jury instruction, which Berry contends prevented the jury from properly
considering self-defense; and (2) An ineffective assistance of counsel claim based
on counsel’s failure to exclude testimony covered by the attorney-client privilege,
failure to exclude evidence of prior domestic violence, and placing Berry’s brother
on the stand. When an appellant includes uncertified issues in his opening brief,
we construe such argument as a motion to expand the COA. See Ninth Cir. R. 22-
1(e). After examining the issues and supporting argument, we conclude that Berry
has not made the “substantial showing of the denial of a constitutional right”
required by 28 U.S.C. § 2253(c)(2). See Slack v. McDaniel, 529 U.S. 473, 478
(2000) (stating that applicant must show “that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right”). The motion to expand the COA is denied.
The judgment of the district court is AFFIRMED.
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