FILED
NOT FOR PUBLICATION MAR 07 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CHARLES JENNINGS, No. 10-16012
Petitioner - Appellant, D.C. No. 3:06-cv-00267-JCM-
RAM
v.
RENEE BAKER; ATTORNEY MEMORANDUM *
GENERAL OF THE STATE OF
NEVADA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted October 18, 2012
San Francisco, California
Before: D.W. NELSON, MURGUIA, and CHRISTEN **, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
*
*
Judge Christen was drawn to replace Judge Betty Binns Fletcher.
Judge Christen has read the briefs, reviewed the record, and listened to the oral
arguments that were held on October 18, 2012.
Nevada state prisoner Charles Jennings appeals from the district court’s
judgment denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
We have jurisdiction under 28 U.S.C. § 2553. We review de novo, Brown v.
Horell, 644 F.3d 969, 978 (9th Cir. 2011), and we affirm.
Jennings was convicted by a jury of first-degree murder with the use of a
deadly weapon. The jury indicated by special verdict that ten of twelve jurors
found Jennings committed first-degree murder under a felony murder theory,
eleven jurors found Jennings committed first-degree murder under a premeditated
murder theory, and eleven found Jennings committed first-degree murder under a
lying in wait theory. Jennings was sentenced to serve two consecutive life terms
without the possibility of parole. Jennings argues that he is entitled to habeas relief
because the Nevada court violated his due process and fair trial rights by allowing
him to be convicted of first-degree murder without jury unanimity as to the theory
of guilt.
The Nevada court’s rejection of Jennings’s claim on direct appeal was
neither contrary to nor involved an unreasonable application of clearly established
federal law as determined by the United States Supreme Court. 28 U.S.C.
§ 2254(d)(1). The Supreme Court has determined that states may properly
designate felony murder and premeditation theories as “alternative means to satisfy
2
the mental element of a single offense.” Schad v. Arizona, 501 U.S. 624, 644
(1991) (plurality opinion). Nevada has made such a designation; it includes
kidnapping as a predicate for felony murder convictions. Nev. Rev. Stat.
§ 200.030(1)(b) (1995). The Schad court approved of split theory first-degree
murder convictions under an Arizona murder statute materially indistinguishable
from Nevada’s. See Schad, 501 U.S. at 628 n.1.
The distinction between the felony murder conviction in Schad and the one
at issue here did not compel a contrary result. As in Schad, Nevada has a long
history of treating felony murder as the “legal equivalent” of premeditation. See,
e.g., Ex parte Dela, 60 P. 217, 220 (Nev. 1900) (internal quotations omitted).
Nevada continues to apply this rule in the twenty-first century. Crawford v. State,
121 P.3d 582, 586 (Nev. 2005). No state legislature or court has determined
subsequent to Schad that kidnapping is an insufficient underlying offense for
felony murder. Jennings’s intentional act of kidnapping while brandishing a gun is
no less the “moral equivalent” of premeditation than Schad’s act of robbery. See
Schad, 501 U.S. at 643.
The Nevada Supreme Court did not unreasonably apply Schad by affirming
Jennings’s conviction and Jennings is therefore ineligible for habeas relief. 28
U.S.C. § 2254(d)(1).
3
Jennings also raised the uncertified issue of ineffective assistance of counsel
on appeal, arguing that his appellate counsel violated his right to a fair trial by
failing to appeal the trial court’s decision to allow the admission of Jennings’s
prior trial testimony. Jennings has not made “a substantial showing of the denial of
a constitutional right,” 28 U.S.C. § 2253(c)(2), and has not “‘demonstrate[d] that
the issues are debatable among jurists of reason; that a court could resolve the
issues [in a different manner]; or that the questions are adequate to deserve
encouragement to proceed further.’” Doe v. Woodford, 508 F.3d 563, 567 (9th Cir.
2007) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). We decline to
expand the certificate of appealability and, therefore, dismiss Jennings’s
uncertified issue for lack of jurisdiction. Doe, 508 F.3d at 569.
AFFIRMED.
4