Christopher Dupree v. ERNEST ROE, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Rebecca R. Pallmeyer, United States District Judge for**
the Northern District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER DUPREE,
Petitioner - Appellant,
v.
ERNEST ROE, Warden; SACRAMENTO
COUNTY DISTRICT ATTORNEY’S
OFFICE; SACRAMENTO COUNTY
SHERIFF’S DEPARTMENT; ROBERT
BELL; KAY MAULSBY; MICHAEL
YARBOROUGH, Warden,
Respondents - Appellees.
No. 08-15547
D.C. No. 02-CV-01160-FCD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Frank C. Damrell, Senior District Judge, Presiding
Submitted June 14, 2010
San Francisco, California
Before: RYMER and FISHER, Circuit Judges, and PALLMEYER, District
Judge.**
FILED
JUN 16 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Christopher Dupree appeals the district court’s denial of his habeas corpus
petition under 28 U.S.C. § 2254. We affirm.
The issue before us is whether the California Court of Appeal unreasonably
applied federal law in holding that due process was not violated by the trial court’s
instructions, or failure to instruct, on the temporal requirements for felony
robbery/burglary murder. See In re Winship, 397 U.S. 358 (1970); Estelle v.
McGuire, 502 U.S. 62, 72 (1991). It did not. The instructions told the jurors that
the killing had to occur during the commission or attempted commission of the
robbery/burglary, and the murder had to be committed to carry out or advance the
underlying felonies. Dupree points to no authority that being part of a “continuous
transaction” is a separate element on which the jury had to be instructed. Nor,
assuming dual motivations were in play, did the instructions overall fail to inform
the jury that the felonious purpose could not be merely incidental, as Dupree
contends. To the contrary, the jury was specifically instructed that the special
circumstance could not be established if the robbery/burglary were merely
incidental to commission of the murder. Thus, no Winship error appears.
Likewise, we cannot say the instructions upheld by the court of appeal left
the entire trial so infected that Dupree’s conviction offends clearly established
notions of due process. Dupree requested no instructions that (in his view) would

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have clarified or better articulated California law along the lines he now presses.
Regardless, errors of California law, if any, are not cognizable on federal habeas
review; and Dupree points to no clearly established federal law imposing an
obligation on the trial court sua sponte to have given any different instructions.
Under the instructions that were given, a reasonable juror would not have
concluded that Dupree and the others entered the apartment just to assault Stack,
but killed Lewis instead before deciding to look for the safe; and the jury could
certainly find that killing Lewis advanced the purpose of the burglary.
AFFIRMED.

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