NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 4 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KRISTOPHER DESHAWN SPEIGHT, No. 21-16203
Petitioner-Appellant, D.C. No. 2:15-cv-00209-JKS
v.
MEMORANDUM*
KEN CLARK, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of California
James K. Singleton, District Judge, Presiding
Argued and Submitted July 25, 2022
San Francisco, California
Before: GRABER and WARDLAW, Circuit Judges, and BAKER,** International
Trade Judge.
Petitioner Kristopher Speight filed a federal habeas petition challenging his
California conviction for sexual penetration in concert with Orlindo Antonio
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable M. Miller Baker, Judge for the United States Court of
International Trade, sitting by designation.
Myles. The district court denied the petition, and this timely appeal followed. On
de novo review, Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000), we affirm.
Petitioner testified on his own behalf at trial. The state trial court incorrectly
instructed the jury that, except for Petitioner’s “testimony,” which “requir[ed]
supporting evidence,” “the testimony of only one witness can prove any fact.”
(Emphasis added). The California Court of Appeal ruled on direct appeal that this
instructional error was harmless beyond a reasonable doubt. People v. Myles, No.
C066505+, 2013 WL 4613810, at *11–12 (Cal. Ct. App. Aug. 29, 2013)
(unpublished). The California Supreme Court denied review without comment, so
we consider the Court of Appeal’s opinion as the “last reasoned decision.”
Shackleford v. Hubbard, 234 F.3d 1072, 1079 n.2 (9th Cir. 2000).
That court’s conclusion that the erroneous instruction did not prejudice
Petitioner is not “objectively unreasonable.” Bell v. Cone, 535 U.S. 685, 694
(2002); 28 U.S.C. § 2254(d). For the most part Petitioner’s testimony corroborated
the victim’s and, therefore, hers corroborated his to the same extent. He testified
that he and Myles tricked the victim into letting them into the house, where they
intended to steal a PlayStation Portable. Myles hit the victim several times;
Petitioner then left to search for the PlayStation; when he returned, he saw that the
victim’s shirt was raised, revealing her breasts. Myles picked up the victim and
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said that he was taking her to a back bedroom. Petitioner saw them there; the
victim’s pants were around her legs and Myles was kneeling in front of her. She
was then taken into a hallway. Myles told Petitioner that they needed something to
tie up the victim so that she did not call the police.1 Petitioner obliged by grabbing
an electric cord and giving it to Myles, who used it to bind the victim despite her
struggles. At that point Petitioner left the hallway, and Myles sexually assaulted
the victim.
In a pretrial, Mirandized statement to police, which was in evidence,
Petitioner admitted to even more. Petitioner told the police that Myles took down
the victim’s pants and said, “I’m about to rape [her]”; that the victim responded
“no” or “don’t”; and that Petitioner knew that an attempted rape was occurring
when he got the cord.2 Petitioner’s own testimony, along with the circumstantial
evidence, established the elements of the crime. For that reason, the state court’s
conclusion that Petitioner suffered no prejudice from the erroneous instruction is
1
An intent to stop the victim from calling the police is not inconsistent with an
intent to facilitate a sexual assault; the victim could call the police to report a
sexual assault as well as a robbery or other crimes.
2
The only significant uncorroborated testimony of Petitioner was his claim that,
when he saw Myles and the victim in the bedroom, he told Myles to leave her
alone, pulled the victim out of the bedroom, and pulled up her pants. The victim
directly contradicted that testimony. Petitioner also testified that if the victim were
tied up “it would stop [Myles] from touching her [further].” Petitioner’s statement
to police, the circumstantial evidence, and logic contradicted that testimony.
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not objectively unreasonable.
We conclude that Petitioner has failed to show “actual prejudice,” meaning
that Petitioner has failed to show that the constitutional violation in question had a
“substantial and injurious effect” on the jury’s verdict. Brecht v. Abrahamson, 507
U.S. 619, 637 (1993). We may reject a habeas claim, without reaching an analysis
under AEDPA, if the alleged error did not prejudice Petitioner within the meaning
of Brecht. Brown v. Davenport, 142 S. Ct. 1510, 1524 (2022). But for the reasons
we have explained, Petitioner also fails to satisfy the AEDPA standard.
Petitioner argues that the state court erred as a matter of law by not
analyzing the erroneous instruction as a denial of his right to testify on his own
behalf, as set forth in Rock v. Arkansas, 483 U.S. 44 (1987). That case is
inapposite. There, an evidentiary rule prohibited the admission of hypnotically
refreshed testimony, resulting in the exclusion of most of the defendant’s
testimony. Here, none of Petitioner’s testimony was excluded; rather, the
instruction concerned the way in which the jury was to evaluate his testimony.
For the same reasons discussed above, Petitioner cannot demonstrate
prejudice under Strickland v. Washington, 466 U.S. 668, 687 (1984), even if his
trial counsel performed deficiently by failing to object to the erroneous instruction.
AFFIRMED.
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