Sherrors

FILED

NOT FOR PUBLICATION MAR 31 2011

MOLLY C. DWYER, CLERK

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

FOR THE NINTH CIRCUIT

RONNIE JERMAINE SHERRORS, No. 07-56756

Petitioner - Appellee, D.C. No. CV-05-01262-IEG

v.

MEMORANDUM *

JEANNE S. WOODFORD,

Respondent - Appellant.

RONNIE JERMAINE SHERRORS, No. 08-55524

Petitioner - Appellant, D.C. No. 3:05-cv-01262-IEG-LSP

v.

JEANNE S. WOODFORD,

Respondent - Appellee.

Appeal from the United States District Court for the Southern District of California Irma E. Gonzalez, Chief District Judge, Presiding

Argued and Submitted December 8, 2010 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: B. FLETCHER, BERZON, and CALLAHAN, Circuit Judges.

The State of California appeals the grant of habeas relief to Ronnie Sherrors,

who was convicted of murder, Cal. Penal Code y 187(a), the use of a deadly

weapon, id. y 12022(b)(1), and the special circumstance of murder during the

commission of a robbery, id. y…

dissenting:

I dissent on the ground that there was no constitutional error in the jury instruction, and even if there was, it was harmless in the context of this case.

One evening, Ronnie Sherrors and his co-defendant stole the car that Steve Foth was driving, forced Foth in the trunk of the car, and drove out to a dark street. They pulled over, pulled Foth out of the trunk, and began stabbing him. Foth sustained approximately 83 stab wounds and bled to death. Sherrors and his co-defendant stripped Foth’s body naked, discarded it in some bushes, and drove away.

Sherrors and his co-defendant were tried and convicted in state court of first degree murder, while using a deadly weapon, and with the special circumstance of murder during the course of a robbery. Each man received a sentence of life without the possibility of parole, plus one year. Sherrors filed a habeas petition in the district court, which was granted on the grounds of instructional error. This appeal followed.

In recent weeks, the Supreme Court has emphasized the narrow nature of habeas relief, reversing several decisions by our court that granted habeas relief. The Supreme Court has stated that “confidence in…

MEMORANDUM *

The State of California appeals the grant of habeas relief to Ronnie Sherrors, who was convicted of murder, Cal.Penal Code § 187(a), the use of a deadly weapon, id. § 12022(b)(1), and the special circumstance of murder during the commission of a robbery, id. § 190.2(a)(17). The State argues that the district court erred in holding that there are grave doubts as to whether a jury instruction used at Sher-rors’s trial had a substantial and injurious effect or influence on the jury’s verdict. Reviewing the district court’s analysis de novo, Lambert v. Blodgett, 393 F.3d 943, 964-65 (9th Cir.2004), we affirm the grant of the conditional writ.

It is undisputed that the instruction at the heart of this case, based on California Jury Instructions (“CALJIC”) No. 2.15, involves a permissive inference — namely, that the jury could (but was not required to) infer that Sherrors had killed the victim, Steven Foth, from: (1) Sherrors’s post-murder possession of Foth’s Audi A4, plus (2) “slight” corroborating evidence. After Sherrors’s conviction, but before the California Court of Appeal decided his direct appeal, the California Supreme Court held that CALJIC No. 2.15 should…