Cesar Sarausad v. Carol Porter

MEMORANDUM

On remand from the Supreme Court, Sarausad renewed the two arguments in his habeas petition that had not yet been decided. The district court rejected both arguments. We affirm.

Sarausad argues that Washington’s accomplice liability statute failed to give him adequate notice that he could be found guilty of murder for aiding in the commission of a drive-by shooting, in violation of the Fourteenth Amendment’s due process clause. It is well-settled that a person cannot be held “criminally responsible for conduct which he could not reasonably understand to be proscribed.” United States v. Harriss, 347 U.S. 612, 617 , 74 S.Ct. 808 , 98 L.Ed. 989 (1954). In challenging the statute for vagueness, Sarausad has the burden to show that it was unconstitutionally vague as applied to him. United States v. Davis, 36 F.3d 1424, 1434 (9th Cir.1994). The Supreme Court’s decision in this case forecloses Sarausad’s argument. Under the Supreme Court’s reading of Washington’s accomplice liability statute and the paralleling jury instruction, the jury found that Sarausad knowingly facilitated a murder, not some other crime. Waddington v. Sarausad, 555 U.S. 179, 191-92 , 129 S.Ct. 823 ,…