Clark Sullivan v. R.G. Borg, Warden

Clark Sullivan was prosecuted in a California court for first-degree murder based on theories of both premeditated murder and felony murder. The trial judge instructed the jury that it could find Sullivan guilty of first-degree murder without jury unanimity as to which theory had been proved. Sullivan was convicted of first-degree murder and ten other counts, and sentenced to 49 years to life imprisonment.

After exhausting his state remedies, Sullivan petitioned for a writ of habeas corpus, alleging that the instruction allowing the jury to convict him of first-degree murder without unanimity as to whether he had committed felony murder or premeditated murder violated his rights to due process and equal protection under the United States Constitution. The district court denied Sullivan’s petition, finding that his argument was precluded by Schad v. Arizona, — U.S. -, 111 S.Ct. 2491 , 115 L.Ed.2d 555 (1991). This timely appeal followed. We review de novo the district court’s denial of a petition for habeas corpus. Thomas v. Brewer, 923 F.2d 1361, 1364 (9th Cir.1991). We agree that Schad is dispositive of Sullivan’s claim and therefore affirm the district court.

A

In Schad , the…