Larry Banks v. CONNIE GIPSON, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY BANKS,
Petitioner - Appellant,
v.
CONNIE GIPSON, Warden,
Respondent - Appellee.
No. 13-17371
D.C. No. 1:11-cv-02067-LJO-MJS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Argued and Submitted February 10, 2016
San Francisco, California
Before: THOMAS, Chief Judge and SCHROEDER and NGUYEN, Circuit Judges.
Larry Banks appeals the district court’s order denying his habeas petition.
Banks was convicted of the May 10, 1977 first degree murder of Susan Vallin.
Banks contends that the trial court erred in instructing the jury that it could
consider evidence of an uncharged sexual assault to show propensity to commit the
FILED
FEB 22 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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charged murder. His theory is that murder is not a crime similar to the uncharged
sexual offense.
The challenged instruction directed the jury to regard the sexual assault
evidence as relevant to the felony murder charge. That charged offense was not
dissimilar to sexual offenses. The state court fully instructed the jury regarding the
elements of the offense and the appropriate burdens of proof. See Mendez v.
Knowles, 556 F.3d 757, 768–70 (9th Cir. 2009). The district court therefore
correctly held that under 28 U.S.C. § 2254(d) there was no unreasonable
application of Supreme Court law when the state court determined that the
propensity instruction did not violate due process or render his trial fundamentally
unfair.
AFFIRMED.
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