Cush

Cush v. Roe

Good Law
203 F. App'x 111
United States Court of Appeals for the Ninth CircuitOctober 17, 2006No. 04-15718California370 words

Opinion

Lead Opinion

MEMORANDUM **

Kevin Paul Cush, a California state prisoner, appeals from the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition, alleging that an error in jury instructions was constitutional error and a violation of due process. We have jurisdiction under 28 U.S.C. § 2253 , and we affirm.

We review the district court’s denial of the petition de novo. See Lara v. Ryan, 455 F.3d 1080, 1084 (9th Cir.2006). There is no question that the trial court misas-signed the jury instructions for violations of California Penal Code § 288(b) to the counts alleging violations of § 288(c), and vice versa. But the California Court of *112 Appeal concluded that it was apparent beyond a reasonable doubt that the error did not contribute to the guilty verdict on the 41 counts of child molestation, applying the harmless-error standard of Chapman v. California, 386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). We must defer to this state-court ruling unless it is objectively unreasonable, that is, “more than being merely, or even clearly, incorrect.” Inthavong v. LaMarque, 420 F.3d 1055, 1061 (9th Cir.2005), cert. denied, —U.S.-, 126 S.Ct. 1660 , 164 L.Ed.2d 403 (2006).

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