Sap Kray v. Belinda Stewart

MEMORANDUM

Sap Kray appeals the district court’s denial of his habeas petition, challenging his underlying state court conviction for first degree murder. We affirm.

A jury convicted Kray of first degree murder of a police officer who was attempting, with other officers, to arrest Kray. Kray defended on the ground of self-defense.

Kray appealed his conviction, contending, among other things, that the district court erred in instructing the jury that the defense of self-defense was not available to an “aggressor.” The Washington Court of Appeals held that any error in the instruction was harmless on the ground that Kray was not entitled to resist the arrest because “(1) the police used force that, while deadly, was lawful and not excessive under the circumstances, and (2) Kray created the need for police to use deadly force.” State v. Kray, No. 24680-5-II, 114 Wash. App. 1052 , 2002 WL 31732682 , at *6, slip op. (Wash.Ct.App. Dec. 6, 2002).

Kray contends that this harmless error ruling by the Washington Court of Appeals introduced, and held to be satisfied, new elements of the crime against which Kray had not had an opportunity to defend. Kray argues that the Washington court…