Curtis Owens v. Kelly Van Cleave Harrington

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CURTIS OWENS,
Petitioner - Appellant,
v.
KELLY VAN CLEAVE HARRINGTON,
Respondent - Appellee.
No. 07-16013
D.C. No. CV-03-05327-LJO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted February 15, 2011**
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
California state prisoner Curtis Owens appeals from the district court’s order
denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28
U.S.C. § 2253, and we affirm.
FILED
FEB 22 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Owens contends that there was insufficient evidence to support his
conviction for burglary. Under Jackson v. Virginia, 443 U.S. 307, 326 (1979), a
court “must presume — even if it does not affirmatively appear in the record —
that the trier of fact resolved any such conflicts in favor of the prosecution, and
must defer to that resolution.” Construing the evidence here in the prosecution’s
favor, a reasonable jury could have concluded that Owens used the screwdriver to
break into the Honda, entered the locked vehicle, and did so with the specific intent
to take someone else’s property permanently. Owens has failed to explain how
obtaining the physical evidence such as the screwdriver, glass, or photographs
would exonerate him. The state court’s rejection of this claim was neither contrary
to, nor involved an unreasonable application of, clearly established federal law.
See 28 U.S.C. § 2254(d)(1); see also Jackson, 443 U.S. at 324.
Owens contends for the first time on appeal that there was insufficient
evidence to support his convictions for attempted burglary and possession of
burglary tools. This contention was not raised in the district court and we decline
to consider it for the first time on appeal. See Rhoades v. Henry, 598 F.3d 495,
501 & n.7 (9th Cir. 2010).
Owens also contends that the district court erred by not holding an
evidentiary hearing regarding allegedly destroyed evidence. The district court did

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not abuse its discretion by denying the request for a hearing. See Karis v.
Calderon, 283 F.3d 1117, 1126-27 (9th Cir. 2002).
The request for a remand is denied.
AFFIRMED.

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