FILED
NOT FOR PUBLICATION
NOV 17 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT ALAN BROWN, No. 16-35741
Petitioner-Appellant, D.C. No. 2:15-CV-00224-SAB
v.
MEMORANDUM*
JAMES KEY, Superintendent of Airway
Heights Correctional Center,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Stanley Allen Bastian, District Judge, Presiding
Argued and Submitted October 3, 2017
Portland, Oregon
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
Petitioner Robert Alan Brown appeals the district court’s judgment
dismissing his petition for writ of habeas corpus. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253. We review a district court’s denial of a petition for writ
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
of habeas corpus de novo, see Smith v. Ryan, 823 F.3d 1270, 1278-79 (9th Cir.
2016), and we affirm.
1. Background. Brown participated in a kidnapping that culminated in the
murder of the victim by Brown’s associates. The information charged Brown with
several crimes, two of which are relevant in this appeal: first degree kidnapping
and felony murder.
The information expressly limited the first degree kidnapping charge by
specifying that Brown kidnapped the victim “with the intent to inflict bodily
harm,” thus omitting any other type of intent that could have supported a first
degree kidnapping conviction. The felony murder charge alleged that Brown
murdered the victim in the course of “first degree kidnapping.” The jury
instructions, however, stated that a kidnapping conviction could rest on a finding
of either intent to inflict bodily injury or intent to inflict extreme mental distress.
By contrast, neither the information nor the jury instructions specified any type of
intent for the felony murder charge. A jury convicted Brown of first degree
kidnapping and felony murder.
On direct appeal, the Washington Court of Appeals reversed the kidnapping
conviction. The court determined that the kidnapping charge had deprived Brown
of his right to notice of the crime for which he could be convicted, because the jury
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instructions included two different means of satisfying intent, while the charging
document contained only one of those means. The Court of Appeals rejected
Brown’s claim that the felony murder conviction was necessarily invalid as a
consequence. The Washington Supreme Court affirmed.
Brown’s federal habeas petition raised the claim that his felony murder
conviction must be vacated because the underlying kidnapping conviction was
reversed. The district court denied Brown’s habeas petition, but issued a certificate
of appealability as to Brown’s challenge to his felony murder conviction.
2. Validity of felony murder conviction. The district court did not err in
concluding that the state court’s decision affirming Brown’s felony murder
conviction does not conflict with clearly established Supreme Court law. Brown
contends that the lack of constitutionally adequate notice as to the sole predicate
felony conviction must also invalidate his felony murder conviction. To reach this
result, Brown analogizes from several Supreme Court decisions dealing with
disparate areas of Fifth Amendment, Sixth Amendment, and habeas jurisprudence.
None of these cases clearly announces Brown’s proposed rule.
Federal courts may not grant habeas relief unless the state court’s
adjudication of a claim rested on an unreasonable determination of the facts in light
of the evidence presented, or “resulted in a decision that was contrary to, or
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involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d).
Analogies from Supreme Court decisions that do not address the specific area of
law at issue are not sufficient. See Carey v. Musladin, 549 U.S. 70, 77 (2006).
“Circuit precedent cannot ‘refine or sharpen a general principle of Supreme Court
jurisprudence into a specific legal rule that [the Supreme] Court has not
announced.’” Lopez v. Smith, 135 S. Ct. 1, 4 (2015) (per curiam) (quoting
Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)).
No legal rule clearly established by any Supreme Court determination
invalidates a felony murder conviction for the reason that the predicate felony
conviction has been overturned for lack of charging notice. Furthermore,
Washington courts have long held that the underlying elements of the predicate
felony are not essential elements of felony murder and do not have to be included
in the information. See State v. Craig, 514 P.2d 151, 154-55 (Wash. 1973); State
v. Whitfield, 224 P. 559, 561 (Wash. 1924). In accordance with Washington law,
both the charging document and the jury instructions that led to Brown’s felony
murder conviction referred to the underlying kidnapping without including a
particular intent. This manner of giving notice for felony murder violates no rule
of law clearly established by the Supreme Court.
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AFFIRMED.
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