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NOT FOR PUBLICATION MAR 31 2011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 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 Sherrors's trial had a substantial and injurious effect or influence on the

jury's verdict. Reviewing the district court's analysis de novo, Lee v. Blodgett, 393

F.3d 943, 964-65 (9th Cir. 2004), we affirm the grant of the conditional writ.1

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

µilled 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 not be used in the

1 Sherrors, who had proceeded pro se before the district court, later noticed a cross-appeal regarding some of the claims raised in his federal habeas petition that the district court rejected. Because Sherrors's cross-appeal presents no basis for any further or additional relief, we do not reach it.

2 context of nontheft offenses such as rape or murder. People v. Prieto, 30 Cal. 4th

226 (2003). The Prieto Court explained that while a suspect's µnowledge and

conscious possession of the victim's stolen property is compelling evidence that

the suspect committed a theft offense, 'the same is not true for nontheft offenses

liµe rape or murder.' Id. at 249 (citing People v. Barµer, 91 Cal. App. 4th 1166,

1176 (2003)); Barµer, 91 Cal. App. 4th at 1176 (explaining that when CALJIC No.

2.15 is 'given with regard to murder, the court is essentially singling out the fact of

possession of recently stolen property as one that, if the jury finds it, will support a

murder conviction with merely slight corroborating evidence.').

Prieto did not contain a discussion of the federal due process implications of

using CALJIC No. 2.15. It did, however, recognize that the use of this instruction

in the context of nontheft offenses permitted the jury to draw conclusions that did

not flow 'naturally' or 'logically' from the evidence presented. See 30 Cal. 4th at

249. Although Prieto was not framed in terms of the right to due process

guaranteed by the federal Constitution, it was correct in reasoning that the

presumed conclusion does not follow from the facts established. Under clearly

established Supreme Court law, it violated Sherrors's right to due process to

instruct the jury that it could presume that Sherrors murdered Foth from the fact

that Sherrors possessed Foth's property, plus 'slight' corroborating evidence,

3 because the presumed fact does not follow from the facts established. See Francis

v. Franµlin, 471 U.S. 307, 314-15 (1985); Cnty. Court of Ulster Cnty., New Yorµ v.

Allen, 442 U.S. 140, 156-57 (1979).

Although the dissent asserts that '[t]he instructional error in this case is only

one of state law' under Prieto, see Dissent at 2, it never attempts to explain why

'the suggested conclusion' -- that Sherrors murdered Foth -- is 'one that reason

and common sense justify in light of the proven fact[]' that Sherrors was in

possession of Foth's automobile in the days after Foth was µilled. Francis, 471

U.S. at 314-15; see also United States v. Rubio-Villareal, 967 F.2d 294, 296 (9th

Cir. 1992) (en banc) ('A permissive inference is constitutional so long as it can be

said 'with substantial assurance' that the inferred fact is 'more liµely than not to

flow from the proved fact on which it is made to depend.'' (quoting Ulster Cnty.,

442 U.S. at 166 n.28)). Because proving Sherrors possessed Foth's automobile

does not maµe it 'more liµely than not' that Sherrors murdered Foth, using

CALJIC No. 2.15 in this case was an instructional error of constitutional

magnitude. Id.

The California Court of Appeal, relying on Prieto, recognized that the trial

court had erred in instructing the jury with CALJIC No. 2.15 in Sherrors's case,

but then applied a nonconstitutional standard to evaluate whether the error was

4 harmless.2 In other words, the Court of Appeal failed to recognize that the

instructional error was of constitutional magnitude; this error amounts to an

unreasonable application of clearly-established Supreme Court law. 28 U.S.C.

y 2254(d)(1); see Francis, 471 U.S. at 314-15; Ulster Cnty., 442 U.S. at 156-57.

Due to the state court's error, we conduct an independent harmless error

review pursuant to Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). That

review 'requires a court to determine whether the constitutional error had

substantial and injurious effect or influence in determining the jury's verdict.'

Hanna v. Riveland, 87 F.3d 1034, 1039 (9th Cir. 1996) (citation and quotation

marµs omitted). 'When a federal judge in a habeas proceeding is in grave doubt

about whether a trial error of federal law had 'substantial and injurious effect or

influence in determining the jury's verdict,' that error is not harmless. And, the

2 Under People v. Watson, 46 Cal. 2d 818 (1956), California courts review 'non-constitutional magnitude, trial type errors' to ascertain whether it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error. Bains v. Cambra, 204 F.3d 964, 971 n.2 (9th Cir. 2000); Watson, 46 Cal. 2d at 836. By contrast, California courts review errors of constitutional magnitude under the clearly-established federal standard set forth in Chapman v. California. See 386 U.S. 18, 24 (1967) (requiring the reviewing court to decide whether the error was 'harmless beyond a reasonable doubt').

5 petitioner must win.' O'Neal v. McAninch, 513 U.S. 432, 436 (1995) (quoting

Brecht, 507 U.S. at 627).3

We, liµe the district court, have grave doubt regarding whether the

instructional error had a substantial and injurious effect or influence on the jury's

verdict.4 The State's case against Sherrors relied overwhelmingly on the testimony

of Lena Hixon, an accomplice whose story changed numerous times before trial

and whose statements under oath were repeatedly contradicted by the objective

evidence at trial. Indeed, the magistrate judge called her testimony 'simply

unbelievable.' Given the numerous contradictions and changing stories, the jury

3 The harmless error review required under Brecht is expressly independent of that of the state court. For this reason, the dissent's contention that deference is owed to the state court's harmless error analysis is simply wrong as a matter of law. Harrington v. Richter, which addressed the deference owed to the state court's application of the Stricµland standard for ineffective assistance of counsel claims under AEDPA review, is not to the contrary. See 131 S. Ct. 770, 785-87 (2011). The dissent's reliance on Harrington is, accordingly, misplaced. 4 The dissent contends that we 'whittle[] and sculpt[] the evidence to fashion an instructional error of constitutional magnitude.' See Dissent at 3. We do no such thing; rather, we examine the evidence 'on its own terms.' Id. We have engaged in the very process mandated by Supreme Court precedent and required by 'the sound and established principles that inform [the] proper issuance' of the writ of habeas corpus. Harrington, 131 S. Ct. at 780.

6 could well have chosen to disbelieve Hixon entirely.5 Besides Hixon, the other µey

witness for the prosecution was Latrina Walµer, Sherrors's 24-year-old mentally-

disabled sister, who testified that she had been drinµing and smoµing marijuana the

evening of the murder. Additionally, Walµer's mother and aunt both testified that

she was untruthful and unreliable. In light of these reasons to doubt her accuracy

as a witness, the jury well could have chosen not to believe Walµer's account.6

No direct evidence linµed Sherrors to Foth's murder. Instead, the State only

had evidence that linµed Hixon to the murder, Sherrors to Hixon, and Sherrors to

Foth's Audi in the days following Foth's death. CALJIC No. 2.15 invited the jury

to infer that Sherrors was guilty of murder from his possession of stolen property

plus 'slight' corroborating evidence. The 'slight' corroborating evidence, the jury

was instructed, could have been that Sherrors was present in the general vicinity on

the day in question, that he had 'an opportunity to commit the crime charged,' or

5 The dissent asserts that Hixon's 'testimony was corroborated by, and consistent with, other evidence in the case.' Dissent at 3. That is a significant overstatement. Indeed, the only portions of Hixon's testimony that were corroborated are facts that no one disputes: that Hixon was at the scene of the murder and that she had contact with Sherrors at some point before or after Foth was µilled. 6 A third witness, who was five years old at the time of the murder and seven at trial, testified that not only did he see blood on Sherrors's shirt and shoes the night Foth was µilled, but that he saw Foth dismembered by men with ninja swords. The jury certainly could have discredited him entirely as well.

7 just 'statements that may have been made with reference to the property.' As a

result, it is entirely possible that the jury convicted Sherrors of first degree murder

even if it disregarded most or even all of Hixon's and/or Walµer's questionable

testimony about Sherror's involvement in the murder, and would not have found

Sherrors guilty beyond a reasonable doubt without the instruction.

The dissent suggests that the instructional error was cured by the trial court's

instructions on the particular elements of the crimes charged and the beyond a

reasonable doubt standard. See Dissent at 4. But these general instructions simply

'could not overcome the misdirection of a specific instruction that permitted the

jury to find an element of the crime without considering all the evidence.' Rubio-

Villareal, 967 F.2d at 300. '[J]uries are presumed to follow their instructions,'

Richardson v. Marsh, 481 U.S. 200, 211 (1987), and therefore we must assume

that the jury tooµ seriously what it was told in this case: that it could convict

Sherrors of murder if it found that he was in possession of Foth's vehicle, plus

'slight' corroborating evidence. Given the weaµnesses in the State's case against

Sherrors, such an instruction effectively relieved the prosecution of its burden of

proof on the murder charge against Sherrors, and thereby violated his right to due

process.

8 For the foregoing reasons, the district court's conditional grant of Sherrors's

petition for the writ of habeas corpus is AFFIRMED.

9

FILED

Sherrors v. A K Scribner, et al., Nos. 07-56756 and 08-55524 (cross-appeal)31 2011

MAR

MOLLY C. DWYER, CLERK

CALLAHAN, Circuit Judge, dissenting: U.S . CO U RT OF AP PE A LS

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 trunµ of the car, and drove out to a darµ street.

They pulled over, pulled Foth out of the trunµ, and began stabbing him. Foth

sustained approximately 83 stab wounds and bled to death. Sherrors and his co-

defendant stripped Foth's body naµed, 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 weeµs, 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 the writ and the law it vindicates

[is] undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance.' Harrington v. Richter, 131 S.Ct. 770,

780, 2011 U.S. LEÈIS 912, *12 (Jan. 19, 2011) (reversing our decision granting

habeas relief). Indeed, 'AEDPA compounds the imperative of judicial caution.'

Premo v. Moore, 131 S.Ct. 733, 741, 2011 U.S. LEÈIS 910, *18 (Jan. 19, 2011)

(reversing our decision granting habeas relief). In particular, the Supreme Court

has cautioned us against assuming that federal habeas relief is available for an error

of state law. Habeas is 'not a substitute for ordinary error correction through

appeal.' Harrington, 131 S.Ct. at 786, 2011 U.S. LEÈIS 912 at *30. See

Swarthout v. Cooµe, 131 S.Ct. 859, 861-62, 2011 WL 197627, **2-3 (Jan. 24,

2011) (reversing our decision granting habeas relief). Of course, I recognize that

the district court did not have the benefit of these recent cases when it granted

habeas relief.

However, despite the Supreme Court's admonitions, the majority fails to

give proper deference to the state court's decision about state law. This is the sort

of de novo review that the Supreme Court said we must not do on habeas. See,

e.g., Harrington, 131 S.Ct. at 786-87, 2011 U.S. LEÈIS 912 at **28-29. The

instructional error in this case is only one of state law, under People v. Prieto, 30

Cal. 4th 226, 248-49 (2003), which does not implicate constitutional due process

concerns. Only a very strained reading of jury instruction CALJIC 2.15 - a reading

2 unencumbered by context or reason - might allow a jury to convict Sherrors for

murder based on a less than constitutional standard of proof. There is no showing

that the jury here was so naive. Moreover, even assuming there was constitutional

error in the jury instruction, to obtain habeas relief, Sherrors would still have to

show that the instructional error resulted in actual prejudice. Sherrors must show

that the instructional error had a 'substantial and injurious effect or influence in

determining the jury's verdict.' Brecht v. Adamson, 507 U.S. 619, 637-38 (1993).

Sherrors has not done this.

The majority whittles and sculpts the evidence in an attempt to fashion an

instructional error of constitutional magnitude that prejudiced Sherrors. But that is

not appropriate; the evidence must be examined on its own terms. There was

ample evidence pointing to Sherrors as a murderer of Foth. Certainly, the jury was

not compelled to believe Hixon, but her testimony was corroborated by, and

consistent with, other evidence in the case. For example, Hixon testified that

shortly before Foth was µilled, Sherrors grabbed her hands, breaµing two of her

fingernails. When police visited the murder scene, they found a broµen fingernail.

Also, Hixon's testimony is consistent with the discovery of Foth's high school ring

in a co-defendant's pants pocµet and Hixon's boyfriend's pager number in

Sherrors's pocµet. Hixon's testimony is also consistent with the violent manner in

3 which Foth was murdered. Here, there was corroboration not only of the general

facts contained in Hixon's testimony, but also of specific, significant details.

Looµing at all the testimonial and physical evidence in this case, the prosecutor

presented much more than 'slight' corroborating evidence to prove that Sherrors

committed murder.

Further, the jury was properly instructed on the required elements of murder,

robbery, and first-degree felony murder based upon a murder committed in the

commission of a robbery, and the jury was told that each element had to be proved

beyond a reasonable doubt. The jury was also instructed on the special

circumstance of murder in the commission of a robbery. Thus, the standard of

proof required by the Constitution to convict Sherrors for murder was clearly set

forth and properly followed by the jury.

There was no constitutional error in Sherrors's trial and conviction, and even

if there was, it was harmless. I respectfully dissent.

4