Kenneth Duane ROY, Petitioner-Appellant, v. James GOMEZ; John Van De Kamp; And William Merkle, Et Al., Respondents-Appellees

108 F.3d 242, 97 Cal. Daily Op. Serv. 1595, 97 Daily Journal DAR 3073, 1997 U.S. App. LEXIS 3749, 1997 WL 87877

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 4, 1997
• Docket: 94-15994
• Status: Published

Opinions

ORDER

In California v. Roy, — U.S. -, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996), the United States Supreme Court reversed this court’s en bane decision, Roy v. Gomez, 81 F.3d 863 (1996), and held that “the State, and the dissenting judges in the Ninth Circuit, are correct about the proper standard” of collateral review. Roy, — U.S. at-¡ 117 S.Ct. at 338. The Court was “convinced that the ‘harmless error’ standards enunciated in Brecht [v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)] and O’Neal [v. McAninch, 513 U.S. 432, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995) ] should apply to the ‘trial error’ before us as enunciated in those opinions and without the Ninth Circuit’s modification.” Id. at-, 117 S.Ct. at 339. We therefore withdraw our prior en banc majority opinion.

On remand from the Court, we must determine if the erroneous jury instruction in this case “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 637, 113 S.Ct. at 1722, quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 1253, 90 L.Ed. 1557 (1946). We adopt the analysis, reasoning, and conclusions stated in the dissent to our en banc decision in Roy, 81 F.3d at 870-71. We hold that the erroneous jury instruction in this ease neither substantially nor injuriously influenced the jury’s verdict, and was thus harmless under Brecht and O’Neal.

AFFIRMED.