Argued and Submitted March 13, 2013—San Francisco, California
Appeal from the United States District Court for the Northern District of California Jeremy D. Fogel, District Judge, Presiding D.C. No. 5:05-cv-03064-JF
Neil Jacob Rosenbaum, Rosenbaum & Associates, San Francisco, California, for Petitioner-Appellant.
Juliet B. Haley (argued), Deputy Attorney General, Kamala D. Harris, Attorney General of California, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Peggy S. Ruffra, Supervising Deputy Attorney General, San Francisco, California, for Respondent-Appellee.
Before: John T. Noonan, Raymond C. Fisher, and Jacqueline H. Nguyen, Circuit Judges.
The panel affirmed the district court's denial of a 28 U.S.C. § 2254 habeas corpus petition challenging the California Supreme Court's construction and application of the felony murder rule.
Petitioner and a friend robbed the stepmother of petitioner's girlfriend, then left the stepmother hogtied on the bed but alive. They pretended to bind the girlfriend and placed her on the bed next to her stepmother. Petitioner claimed that the girlfriend killed her stepmother after he left.
The panel first rejected petitioner's contention that the requirement of a "logical nexus" between the felony and the victim's death under California law is unconstitutionally vague, because the California Supreme Court provided guidance as to what a logical nexus means, and because there were objective facts in this case that connected the victim's death to the felony, even if someone else killed her after petitioner left the scene.
The panel next held that the California Supreme Court's adoption of the logical nexus rule in petitioner's case was not an unforeseeable and retroactive judicial expansion of liability that violated clearly established federal law, when California case law suggested but no court had held that a robber was not liable for a killing that his co-felon committed during the robbery for reasons independent of the robbery.
The panel rejected petitioner's challenge to the trial court's instructions relating to felony murder, because there was no harm in limiting the jury's consideration of evidence that the girlfriend hated her stepmother, and the failure to instruct explicitly in terms of "nexus" was, at most, harmless error.
FISHER, Circuit Judge
James Freddie Cavitt and his girlfriend Mianta McKnight robbed the house of Betty McKnight, Mianta's stepmother. Cavitt admits that he and Mianta robbed the victim's home and left her hogtied and face-down with a sheet taped around her head. He contends, however, that Betty was alive, albeit breathing laboriously, when he left. Betty McKnight was not breathing and had no pulse by the time police arrived 22 minutes later. Cavitt speculates that, after he left, Mianta killed Betty because of personal hatred, a motive he says was unrelated to the robbery. The state trial court, reasoning that ...