Edwaun Victor Moore v. James Rowland, Director, California Department of Corrections

1. Petitioner argues that, contrary to People v. Landry, 212 Cal.App.3d 1428 , 261 Cal.Rptr. 254 (1989), California’s sec ond-degree felony murder rule is a judicially-rather than statutorily-created offense, and therefore violates separation of powers under California law. Thus, because his conviction for second-degree murder may have been based on an unconstitutional felony-murder theory, it violated his Fourteenth Amendment right to due process under Hicks v. Oklahoma, 447 U.S. 343 , 100 S.Ct. 2227 , 65 L.Ed.2d 175 (1980).

Even if petitioner were correct that Landry misstates California law, violation of state separation of powers does not fall within the compass of Hicks , which concerned the erroneous deprivation of a jury’s discretion to impose appropriate criminal punishment. Id. at 345-46 , 100 S.Ct. 2227 . Further, petitioner’s argument is foreclosed by our holding in Murtishaw v. Woodford, 255 F.3d 926 (9th Cir.2001), that a state’s violation of its separation-of-powers principles does not give rise to a federal due process violation. Id. at 959-61 .

[1] 2. Petitioner next argues that retroactive application of People v. Hansen, 9 Cal.4th 300 , 36 Cal.Rptr.2d 609 , 885…