Larry Banks v. Connie Gipson

637 F. App'x 379

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 22, 2016
• Docket: 13-17371
• Status: Unpublished

Opinion

MEMORANDUM *

Larry Banks appeals the district court’s order denying his habeas petition. Banks was convicted of the May 10, 1977 first degree murder of Susan Vallin. Banks contends that the trial court erred in instructing the jury that it could consider evidence of an uncharged sexual assault to show propensity to commit the charged murder. His theory is that murder is not a crime similar to the uncharged sexual offense.

The challenged instruction directed the jury to regard the sexual assault evidence as relevant to the felony murder charge. That charged offense was not dissimilar to sexual offenses. The state court fully instructed the jury regarding the elements of the offense and the appropriate burdens of proof. See Mendez v. Knowles, 556 F.3d 757, 768-70 (9th Cir.2009). The district court therefore correctly held that under 28 U.S.C. § 2254(d) there was no unreasonable application of Supreme Court law when the state court determined that the propensity instruction did not violate due process or render his trial fundamentally unfair.

AFFIRMED.

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