NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 25 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARK WAYNE GRAY, No. 18-16604

Petitioner-Appellant, D.C. No. 2:13-cv-00564-KJM-EFB v.

DEAN BORDERS, Warden, MEMORANDUM * P0F P

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Submitted November 19, 2020** P 1F P

San Francisco, California

Before: NGUYEN, HURWITZ, and BRESS, Circuit Judges.

Mark Wayne Gray was convicted in California state court of sexual

penetration with a foreign object and received a five-year sentence enhancement for

administering a controlled substance during the commission of that crime. See Cal.

Penal Code §§ 289(d), 12022.75(b). Gray now seeks review of the district court’s

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). denial of his federal habeas petition. See 28 U.S.C. § 2254. We review de novo the

denial of § 2254 relief. Deck v. Jenkins, 814 F.3d 954, 977 (9th Cir. 2016). We

have jurisdiction under 28 U.S.C. § 2253 and affirm.

1. To demonstrate a due process violation based on insufficient evidence,

Gray must show that, “reviewing the evidence in the light most favorable to the

prosecution, no rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” United States v. Garcia-Guizar, 160 F.3d 511,

516 (9th Cir. 1998) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)). When

reviewing sufficiency of the evidence, we “undertake the inquiry with reference to

the elements of the criminal offense as set forth by state law.” Juan H. v. Allen, 408

F.3d 1262, 1275–76 (9th Cir. 2005) (citing Jackson, 443 U.S. at 324 n.16). Under

the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), “we ask only

whether the state court’s decision was contrary to or reflected an unreasonable

application of Jackson to the facts of a particular case.” Emery v. Clark, 643 F.3d

1210, 1213–14 (9th Cir. 2011) (per curiam).

The California Supreme Court denied Gray’s habeas petition without

comment. Although the California Court of Appeal had previously addressed Gray’s

arguments in a reasoned direct appeal decision, the State has “rebut[ted] the

presumption” that the California Supreme Court’s denial of review encompassed the

same reasoning as the California Court of Appeal. Wilson v. Sellers, 138 S. Ct. 1188,

2 1192 (2018). That is because the California Supreme Court had explicitly invited

Gray to seek habeas relief based on “whether [he] is entitled to relief in light of

People v. Davis, [303 P.3d 1179 (Cal. 2013)].” Davis had not been issued at the

time of the Court of Appeal’s decision. The California Supreme Court’s denial of

review is therefore the operative decision for AEDPA purposes, and Gray must show

that “there was no reasonable basis for [that court] to deny relief.” Harrington v.

Richter, 562 U.S. 86, 98 (2011).

It would have been reasonable for the California Supreme Court to reject

Gray’s challenge to the sufficiency of the evidence supporting his sentencing

enhancement in light of Davis. Davis makes clear that “any substance expressly

listed by any accepted name in sections 11054 through 11058 [of the California

Health & Safety Code] is a controlled substance as a matter of law, and the jury need

not make any further finding in that regard.” 303 P.3d at 1184 n.5. The jury

specifically found true that Gray administrated Ambien to his victim, and it is

undisputed that Ambien is a brand name of zolpidem, which is expressly listed as a

controlled substance. Id.; Cal. Health & Safety Code § 11057(d)(32).

2. Gray next argues that his constitutional rights were violated under

Apprendi v. New Jersey, 530 U.S. 466 (2000), because the jury did not find that Gray

administered zolpidem. This argument fails for the same reason as Gray’s challenge

to the sufficiency of the evidence. The jury found that Gray administered Ambien,

3 and the California Supreme Court could have reasonably found the jury’s finding

sufficient. Davis, 303 P.3d at 1184 n.5.

3. Gray requests a certificate of appealability on the question of whether

he was denied the right to a fair trial after the trial court compelled the disclosure of

certain letters Gray had written to his attorney, which Gray used to refresh his

recollection for his testimony. We have carefully reviewed this request and deny it

because Gray has not made a “substantial showing of the denial of a constitutional

right.” 28 U.S.C. § 2253(c)(2).

AFFIRMED.1

1 We deny Gray’s motion for judicial notice (Dkt. No. 35).

4