Jerome Markay v. L. Brown

599 F. App'x 270

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 19, 2015
• Docket: 08-16538
• Status: Unpublished

Opinion

MEMORANDUM **

Jerome Markay, appealing from the district court’s denial of his petition for writ of habeas corpus, argues that his absence at resentencing violated his right to be present at all critical stages of trial. We affirm the district court’s denial of Mar-kay’s habeas petition because even if Mar-kay had a constitutional right to be present at resentencing, and even if he did not waive that right, the California Court of Appeal did not unreasonably determine that any error in his case was harmless. See Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir.2005) (en banc); Rice v. Wood, 77 F.3d 1138, 1144 (9th Cir.1996) (en banc).

Nothing in the record suggests that Markay’s absence influenced the sentencing court’s decision. The court was familiar with Markay’s mental health history, and Markay was represented by counsel. Markay’s speculation that he would have received a lighter sentence had he been present is inadequate, at least on this record, to demonstrate that his absence had a “substantial and injurious effect” on the outcome. Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993).

AFFIRMED.

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