Larry Ray Morrison v. Maggie Miller-Stout

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).
SMS/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LARRY RAY MORRISON,
Petitioner - Appellant,
v.
MAGGIE MILLER-STOUT,
Respondent - Appellee.
No. 07-35681
D.C. No. CV-06-01609-TSZ
MEMORANDUM *
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, District Judge, Presiding
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
Washington state prisoner Larry Ray Morrison appeals from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
FILED
MAR 03 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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SMS/Research 07-35681 2
Morrison contends the trial court violated his due process rights when it
instructed the jury that the phrase “on or about January 31, 2002,” as stated in the
information, meant the charged offense could have occurred at any point in the
three years preceding the date Morrison was charged. Morrison has not shown that
the state court’s rejection of this claim was either contrary to, or an unreasonable
application of, clearly established federal law, or that it was based on an
unreasonable determination of the facts in light of the evidence presented. See 28
U.S.C. § 2254(d). Even though the supplemental instruction was erroneous under
state law, the record indicates it did not have a “‘substantial and injurious effect or
influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619,
637-38 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); see
California v. Roy, 519 U.S. 2, 4-6 (1996) (per curiam) (applying harmless error
standard to jury instructions that omit an element of the crime).
AFFIRMED.

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