FILED

NOT FOR PUBLICATION MAR 07 2013

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

CHARLES JENNINGS, No. 10-16012

Petitioner - Appellant, D.C. No. 3:06-cv-00267-JCM-

RAM

v.

RENEE BAKER; ATTORNEY MEMORANDUM *

GENERAL OF THE STATE OF

NEVADA,

Respondents - Appellees.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding

Argued and Submitted October 18, 2012 San Francisco, California

Before: D.W. NELSON, MURGUIA, and CHRISTEN **, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

* * Judge Christen was drawn to replace Judge Betty Binns Fletcher. Judge Christen has read the briefs, reviewed the record, and listened to the oral arguments that were held on October 18, 2012. Nevada state prisoner Charles Jennings appeals from the district court’s

judgment denying his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

We have jurisdiction under 28 U.S.C. § 2553. We review de novo, Brown v.

Horell, 644 F.3d 969, 978 (9th Cir. 2011), and we affirm.

Jennings was convicted by a jury of first-degree murder with the use of a

deadly weapon. The jury indicated by special verdict that ten of twelve jurors

found Jennings committed first-degree murder under a felony murder theory,

eleven jurors found Jennings committed first-degree murder under a premeditated

murder theory, and eleven found Jennings committed first-degree murder under a

lying in wait theory. Jennings was sentenced to serve two consecutive life terms

without the possibility of parole. Jennings argues that he is entitled to habeas relief

because the Nevada court violated his due process and fair trial rights by allowing

him to be convicted of first-degree murder without jury unanimity as to the theory

of guilt.

The Nevada court’s rejection of Jennings’s claim on direct appeal was

neither contrary to nor involved an unreasonable application of clearly established

federal law as determined by the United States Supreme Court. 28 U.S.C.

§ 2254(d)(1). The Supreme Court has determined that states may properly

designate felony murder and premeditation theories as “alternative means to satisfy

2 the mental element of a single offense.” Schad v. Arizona, 501 U.S. 624, 644

(1991) (plurality opinion). Nevada has made such a designation; it includes

kidnapping as a predicate for felony murder convictions. Nev. Rev. Stat.

§ 200.030(1)(b) (1995). The Schad court approved of split theory first-degree

murder convictions under an Arizona murder statute materially indistinguishable

from Nevada’s. See Schad, 501 U.S. at 628 n.1.

The distinction between the felony murder conviction in Schad and the one

at issue here did not compel a contrary result. As in Schad, Nevada has a long

history of treating felony murder as the “legal equivalent” of premeditation. See,

e.g., Ex parte Dela, 60 P. 217, 220 (Nev. 1900) (internal quotations omitted).

Nevada continues to apply this rule in the twenty-first century. Crawford v. State,

121 P.3d 582, 586 (Nev. 2005). No state legislature or court has determined

subsequent to Schad that kidnapping is an insufficient underlying offense for

felony murder. Jennings’s intentional act of kidnapping while brandishing a gun is

no less the “moral equivalent” of premeditation than Schad’s act of robbery. See

Schad, 501 U.S. at 643.

The Nevada Supreme Court did not unreasonably apply Schad by affirming

Jennings’s conviction and Jennings is therefore ineligible for habeas relief. 28

U.S.C. § 2254(d)(1).

3 Jennings also raised the uncertified issue of ineffective assistance of counsel

on appeal, arguing that his appellate counsel violated his right to a fair trial by

failing to appeal the trial court’s decision to allow the admission of Jennings’s

prior trial testimony. Jennings has not made “a substantial showing of the denial of

a constitutional right,” 28 U.S.C. § 2253(c)(2), and has not “‘demonstrate[d] that

the issues are debatable among jurists of reason; that a court could resolve the

issues [in a different manner]; or that the questions are adequate to deserve

encouragement to proceed further.’” Doe v. Woodford, 508 F.3d 563, 567 (9th Cir.

2007) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)). We decline to

expand the certificate of appealability and, therefore, dismiss Jennings’s

uncertified issue for lack of jurisdiction. Doe, 508 F.3d at 569.

AFFIRMED.

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