Busby v. McGraph

Ninth Circuit

Busby v. McGraph

325 F. App'x 550

CourtCourt of Appeals for the Ninth Circuit

DecidedApril 30, 2009

DocketNo. 08-16098

StatusPublished

This text of 325 F. App'x 550 (Busby v. McGraph) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Busby v. McGraph, 325 F. App'x 550 (9th Cir. 2009).

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Opinion

MEMORANDUM

*

Phillip Lamar Busby appeals the denial of his habeas petition. Because the underlying state court decision was not “contrary to, or ... an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), we affirm.

The state court reasonably found that California Jury Instruction 2.15 did not create a “reasonable likelihood” that the jury misunderstood the government’s burden of proof. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); see generally Gibson v. Ortiz, 387 F.3d 812 (9th Cir.2004). Any ambiguity in the instruction was clarified by other instructions given to the jury. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

Likewise, the state court reasonably determined that the application of California Jury Instruction 2.15 to Busby’s assault charges did not violate the Due Process Clause of the Fourteenth Amendment. Under the particular facts of Busby’s case, the state court reasonably determined that it was more likely than not that Busby’s possession of the cellular phone resulted from his participation in the assaults. See County Ct. of Ulster v. Allen, 442 U.S. 140, 163, 165, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

AFFIRMED.

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

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MEMORANDUM

*

Phillip Lamar Busby appeals the denial of his habeas petition. Because the underlying state court decision was not “contrary to, or ... an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), we affirm.

The state court reasonably found that California Jury Instruction 2.15 did not create a “reasonable likelihood” that the jury misunderstood the government’s burden of proof. Boyde v. California, 494 U.S. 370, 380, 110 S.Ct. 1190, 108 L.Ed.2d 316 (1990); see generally Gibson v. Ortiz, 387 F.3d 812 (9th Cir.2004). Any ambiguity in the instruction was clarified by other instructions given to the jury. See Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

Likewise, the state court reasonably determined that the application of California Jury Instruction 2.15 to Busby’s assault charges did not violate the Due Process Clause of the Fourteenth Amendment. Under the particular facts of Busby’s case, the state court reasonably determined that it was more likely than not that Busby’s possession of the cellular phone resulted from his participation in the assaults. See County Ct. of Ulster v. Allen, 442 U.S. 140, 163, 165, 99 S.Ct. 2213, 60 L.Ed.2d 777 (1979).

AFFIRMED.

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

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Bluebook (online)

325 F. App'x 550, Counsel Stack Legal Research, https://law.counselstack.com/opinion/busby-v-mcgraph-ca9-2009.

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