Robert Wilson v. Ken Clark

dissenting:

The only issue before us is whether sufficient evidence supported Robert Alan Wilson’s conviction for resisting an executive officer, including whether the officer was performing a lawful duty when he detained Wilson. Because sufficient evidence supported Wilson’s conviction, I respectfully dissent.

*748 The California Court of Appeal’s statement of facts, which is not challenged for accuracy, set forth that Wilson was seated on the stairs of a commercial building, closed for the evening, in an area that had been vandalized and used by transients for urination and defecation. Detective Roy Ellison and his partner, both dressed in gang unit uniforms, asked Wilson about his well-being and asked whether he knew that he was in a closed commercial area. Wilson responded angrily by cursing at the officers. Ellison detected the smell of alcohol coming from Wilson and noticed an open container sitting next to him on the stair. Ellison, suspecting that Wilson might be too intoxicated for his own safety and that of others, asked Wilson for identification and then asked him to come down the stairs. Wilson again cursed angrily and continued to refuse in the same vulgar way when…

MEMORANDUM *

Robert Alan Wilson appeals the denial of his federal habeas petition challenging his conviction for violating California Penal Code § 69, resisting an executive officer. Wilson argues that there was insufficient evidence that Officer Ellison was performing a lawful duty, an element of § 69, to sustain a conviction. We reverse the district court and grant Wilson’s petition for habeas relief.

The state court decision denying Wilson’s sufficiency of the evidence claim was unreasonable under AEDPA. The state court’s conclusion that Officer Ellison was performing a lawful duty merely because Officer Ellison did not use excessive force in detaining Wilson effectively reads the “lawful duty” element out of § 69 and is thus contrary to Jackson v. Virginia, 443 U.S. 307 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979). 1 See Goldyn v. Hayes, 444 F.3d 1062, 1070 (9th Cir.2006). The state court’s decision would find an arbitrary, *747 malicious, or even knowingly illegal action by the officer to be “lawful.” Moreover, the decision relies on both the formal fallacy of denying the antecedent — concluding that because Officer Ellison’s action was not unlawful due to the use of excessive…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAR 29 2010

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ROBERT ALAN WILSON, No. 08-55758

Petitioner - Appellant, D.C. No. 8:05-cv-00446-GPS-SGL

v.

MEMORANDUM *

KEN CLARK, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Stephen G. Larson, District Judge, Presiding

Argued and Submitted February 1, 2010 Pasadena, California

Before: B. FLETCHER, PREGERSON, and GRABER, Circuit Judges.

Robert Alan Wilson appeals the denial of his federal habeas petition

challenging his conviction for violating California Penal Code § 69, resisting an

executive officer. Wilson argues that there was insufficient evidence that Officer

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Ellison was performing a lawful duty, an element of § 69, to sustain a conviction.

We reverse the district court and grant Wilson’s petition for habeas relief.

The state court decision denying Wilson’s…