FILED

NOT FOR PUBLICATION JUN 23 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

KENNETH R. MOYER No. 08-17322

Petitioner - Appellant, D.C. No. 3CV-S-03-01719

JAM/JFM

v.

JOE McGRATH, Warden MEMORANDUM *

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of California John A. Mendez , District Judge, Presiding

Argued and Submitted April 12, 2010 San Francisco, California

Before: SCHROEDER and N.R. SMITH, Circuit Judges, and MOODY, District Judge.**

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable James Maxwell Moody, Senior United States District Judge for the Eastern District of Arkansas, sitting by designation.

1 Kenneth R. Moyer appeals the denial by the district court of his petition for a

writ of habeas corpus. The district court had jurisdiction under 28 U.S.C. § 2254,

and we have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review the district

court’s decision de novo. See Burnett v. Lampert, 432 F.3d. 996, 997 (9th Cir.

2005). We affirm.

Petitioner was convicted of murdering his wife and sentenced to life

imprisonment without parole. Petitioner contends that his conviction violated his

right to due process because his counsel failed to request, and the trial court failed

to give, an accomplice testimony instruction pursuant to California Penal Code

§ 1111. California Penal Code § 1111 provides that “[a] conviction can not be had

upon the testimony of an accomplice unless it be corroborated by such other

evidence as shall tend to connect the defendant with the commission of the offense.

. . .”

Petitioner relies on the out of circuit case of Dubois v. Lockhart, 859 F.2d

1314 (8th Cir. 1988), where there was no corroboration of accomplice testimony in

a first trial and hence double jeopardy in the retrial, because insufficient evidence

doomed the first. This court agrees that uncorroborated testimony of an

accomplice can be so suspect as to fail to provide sufficient evidence to support a

conviction. See Laboa v. Calderon, 224 F.3d 972, 979 (9th Cir. 2000)

2 (uncorroborated accomplice testimony can sustain a conviction under federal law

and the Constitution so long as it is “neither incredible nor insubstantial on its

face.”). In petitioner’s case there was ample corroboration of his guilt including,

but not limited to, the insurance policy that became effective the day of the murder,

petitioner’s attempt to bribe a local workman to give a false statement to the police,

petitioner’s attempted escape, and the blood on the floor that petitioner described

as cherry cough syrup.

The judgment of the district court is AFFIRMED.

3