Daniel Larson v. Patrick Glebe

MEMORANDUM

Daniel Larson brings this habeas petition pursuant to 28 U.S.C. § 2254 to challenge his convictions for both first and second degree murder for the death of Anastasia King. We have jurisdiction pur suant to 28 U.S.C. §§ 1291 and 2253. We review the district court’s decision to deny the petition de novo. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.2004).

The district court erred in concluding that Larson was not “in custody” under his conviction for second degree murder. A petitioner is “in custody” for the purposes of Section 2254 if “he is subject to a significant restraint upon his liberty ‘not shared by the public generally.’ ” Dow v. Circuit Court of the First Circuit, 995 F.2d 922, 923 (9th Cir.1993) (quoting Jones v. Cunningham, 371 U.S. 236, 240 , 83 S.Ct. 373 , 9 L.Ed.2d 285 (1963)). Here, Larson is “in custody” on his first conviction because the possibility of a double jeopardy violation flows from it and constitutes a significant restraint on his liberty.

The deferential standard of review set out in the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to this case because the Washington Court of Appeals ruled on the merits of…