James Alexander v. Maggie Miller-Stout

FILED

NOT FOR PUBLICATION JAN 15 2015

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES G. ALEXANDER, No. 13-35726

Petitioner - Appellant, D.C. No. 2:11-cv-00187-JCC

v.

MEMORANDUM*

MAGGIE MILLER-STOUT,

Respondent - Appellee.

Appeal from the United States District Court for the Western District of Washington John C. Coughenour, Senior District Judge, Presiding

Argued and Submitted October 9, 2014 Seattle, Washington

Before: PAEZ, BYBEE, and CALLAHAN, Circuit Judges.

Appellant James G. Alexander appeals the district court’s denial of his 28

U.S.C. § 2254 habeas corpus petition, which challenged his state conviction for

homicide by abuse. We review the district court’s denial of Alexander’s petition

de novo. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007). We have

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. jurisdiction under 28 U.S.C. § 2253, and we affirm.

The question Alexander poses on appeal is whether the State violated his

due process…

dissenting.

I respectfully dissent. Because I would reverse the denial of Alexander’s petition on the basis that the presumption of vindictiveness arose and remand for further proceedings, I review the petition under AEDPA for whether the Washington Su *932 preme Court’s decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States!.]” 28 U.S.C. § 2254 (d)(1).

There are two ways to show prosecutorial vindictiveness: (1) through a “presumption of vindictiveness” analysis or (2) by proving “actual vindictiveness.” Alabama v. Smith, 490 U.S. 794, 798-99 , 109 S.Ct. 2201 , 104 L.Ed.2d 865 (1989). The presumption arises “only in cases in which a reasonable likelihood of vindictiveness exists.” United States v. Goodwin, 457 U.S. 368, 372 , 102 S.Ct. 2485 , 73 L.Ed.2d 74 (1982); see also Blackledge v. Perry, 417 U.S. 21, 27 , 94 S.Ct. 2098 , 40 L.Ed.2d 628 (1974) (referring to a “realistic likelihood of ‘vindictiveness’ ”). “[I]n certain cases in which action detrimental to the defendant has been taken after the exercise of a legal right, the Court has found it necessary to ‘presume’ an…

MEMORANDUM *

Appellant James G. Alexander appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, which challenged his state conviction for homicide by abuse. We review the district court’s denial of Alexander’s petition de novo. Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir.2007). We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

The question Alexander poses on appeal is whether the State violated his due process rights by engaging in vindictive prosecution. Under AEDPA, “we defer to the last reasoned judgment by the state courts.” Brown, 503 F.3d at 1010 ; 28 U.S.C. § 2254 (d). Here, the Washington Supreme Court’s opinion was the last reasoned state court decision, which declined to find vindictiveness and affirmed Alexander’s homicide by abuse conviction. We need not conduct an AEDPA analysis — by determining whether the Washington Supreme Court’s decision was “contrary to, or involved an unreasonable application of, clearly established law,” 28 U.S.C. § 2254 (d) — because even if we concluded that AEDPA does not mandate deference here, we would still reach the same result.

In 1991, Alexander was convicted of felony murder, with…