Elijah White v. DEBRA DEXTER, Warden

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).
The Honorable Robert S. Lasnik, Chief United States District Judge***
for the Western District of Washington, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIJAH WHITE,
Petitioner - Appellant,
v.
DEBRA DEXTER, Warden,
Respondent - Appellee.
No. 09-16270
D.C. No. 1:07-cv-01257-IEG-PCL
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted November 1, 2010**
San Francisco, California
Before: HALL and THOMAS, Circuit Judges, and LASNIK, Chief District
Judge.***
FILED
NOV 17 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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2
Elijah White, a California state prisoner, appeals the district court’s denial of
his habeas corpus petition. We affirm. Because the factual and procedural
background is familiar to the parties, we need not recount it here.
I
White challenges the jury instructions as ambiguous. On federal habeas
review, the question is not whether the instruction was deficient. Rather, the
question is “whether the ailing instruction by itself so infected the entire trial that
the resulting conviction violates due process." Estelle v. McGuire, 502 U.S. 62, 72
(1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)). Here, the
California Court of Appeal determined that White’s proposed definitions of
residence and knowledge do not accurately reflect California law. We are bound
by that determination. Bradshaw v. Richey, 546 U.S. 74, 76 (2005). The state
appellate court also determined that the “regularly resided” element was “squarely
before the jury,” even though not separately enumerated in the jury instructions.
This conclusion was not objectively unreasonable. 28 U.S.C. § 2254(d). Thus, the
district court properly concluded that the jury instructions given by the state trial
court did not violate White’s due process rights.

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II
The California Court of Appeal’s conclusion that the term residence in Cal.
Penal Code § 290 was not unconstitutionally vague was not an objectively
unreasonable application of federal law. 28 U.S.C. § 2254(d). As the California
Court of Appeal pointed out, the definition given to the jury was the same
definition in the prevailing case law prior to White’s arrest, and should have given
him notice of what conduct was prohibited.
III
After thoroughly reviewing the record, and applying the appropriate
standard of review, we conclude that there was sufficient evidence to support the
verdict. See Jackson v. Virginia, 443 U.S. 307, 326 (1979) (explaining that a
federal court may grant a petition for habeas corpus due to insufficient evidence if
it finds that no rational trier of fact could have found proof of guilt beyond a
reasonable doubt.).
AFFIRMED.

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