Gregory B. La Rue v. Daniel J. McCarthy

Gregory B. La Rue, a state prisoner at the Correctional Training Facility, Soledad, California, appeals the district court’s denial of his habeas corpus petition filed pursuant to 28 U.S.C. § 2254 . La Rue contests the validity of his conviction for second degree felony murder, which rested upon the offense of felony child abuse. He argues that recent decisions of the California Supreme Court and Court of Appeal, which preclude a conviction for felony murder when the underlying offense is child abuse, require his release. La Rue asserts that the failure to apply these decisions retroactively to his conviction violates the equal protection and due process clauses of the fourteenth amendment.

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

I

FACTS

In 1980, a jury convicted La Rue of second degree felony murder in violation of California Penal Code § 187. The underlying offense charged was felony child abuse. The victim, two-year-old Cherise, either was placed or voluntarily climbed into a bathtub of scalding water, where she received severe burns and suffered respiratory arrest. Allegedly in an effort to revive her, La Rue tied a sock around her neck so that he…