Allen Hassan v. Fred Morawcznski

FILED

NOT FOR PUBLICATION NOV 30 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

ALLEN HASSAN, No. 09-17169

Petitioner - Appellant, D.C. No. 2:05-cv-02144-MCE-

DAD

v.

FRED MORAWCZNSKI, MEMORANDUM *

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding

Argued and Submitted November 1, 2010 San Francisco, California

Before: GOULD, IKUTA, Circuit Judges, and MAHAN, District Judge.**

Allen Hassan ('Hassan') appeals the district court's denial of his 28 U.S.C.

y 2254 petition for a writ of habeas corpus challenging his California state court

convictions for obstructing an executive officer, resisting a peace officer, speeding,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James C. Mahan, United States District Judge for the District of Nevada, sitting by designation. driving…

MEMORANDUM **

Allen Hassan (“Hassan”) appeals the district court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his California state court convictions for obstructing an executive officer, resisting a peace officer, speeding, driving without possession of valid registration, and assault on a peace officer. We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

There are four certified issues in this appeal. Hassan first argues that because the California trial court did not give sua sponte a special unanimity instruction, Hassan was denied his right to a unanimous jury. The Appellate Department’s conclusion — in the last reasoned decision in this matter — that there was no error in the omission of the instruction is a binding interpretation of state law. See Bradshaw v. Richey, 546 U.S. 74, 76 , 126 S.Ct. 602 , 163 L.Ed.2d 407 (2005) (per curiam). Further, the Supreme Court “has never held jury unanimity to be a requisite of due process of law.” Johnson v. Louisiana, *132 406 U.S. 356, 359 , 92 S.Ct. 1620 , 32 L.Ed.2d 152 (1972). Thus, the state court’s rejection of Hassan’s claim was not contrary to, nor an unreasonable application…

dissenting.

Allen Hassan was convicted by a jury in California state court of obstructing an executive officer, resisting a peace officer, speeding, driving without possession of valid registration, and assault on a peace officer. The convictions arose out of an altercation between Hassan and Officer Cooney following a traffic stop, the details of which were contested at trial. The prosecutor posited during closing argument that the jury could convict Hassan of assault based on any one of three discrete acts by Hassan that were included in Officer Cooney’s version of events: (a) grabbing the officer’s badge, (b) swinging at the officer as Hassan broke free from the officer’s hold, or (c) “spearing” the officer with Hassan’s shoulder while in handcuffs.

Although there is no clearly established right in Supreme Court precedent to jury unanimity in a state prosecution, see Johnson v. Louisiana, 406 U.S. 356, 359 , 92 S.Ct. 1620 , 32 L.Ed.2d 152 (1972), a prisoner may also challenge a flawed instruction through a writ of habeas corpus on the theory that it “so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147 , 94…