Morrison v. Miller-Stout

Ninth Circuit

Morrison v. Miller-Stout

369 F. App'x 787

CourtCourt of Appeals for the Ninth Circuit

DecidedMarch 3, 2010

Docket07-35681

StatusUnpublished

This text of 369 F. App'x 787 (Morrison v. Miller-Stout) 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.

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Morrison v. Miller-Stout, 369 F. App'x 787 (9th Cir. 2010).

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Opinion

MEMORANDUM **

Washington state prisoner Larry Ray Morrison appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Morrison contends the trial court violated his due process rights when it instructed the jury that the phrase “on or about January 31, 2002,” as stated in the information, meant the charged offense could have occurred at any point in the three years preceding the date Morrison was charged. Morrison has not shown that the state court’s rejection of this claim was either contrary to, or an unreasonable application of, clearly established federal law, or that it was based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). Even though the supplemental instruction was erroneous under state law, the record indicates it did not have a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (iquoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see California v. Roy, 519 U.S. 2, 4-6, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam) (applying harmless error standard to jury instructions that omit an element of the crime).

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 **

Washington state prisoner Larry Ray Morrison appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

Morrison contends the trial court violated his due process rights when it instructed the jury that the phrase “on or about January 31, 2002,” as stated in the information, meant the charged offense could have occurred at any point in the three years preceding the date Morrison was charged. Morrison has not shown that the state court’s rejection of this claim was either contrary to, or an unreasonable application of, clearly established federal law, or that it was based on an unreasonable determination of the facts in light of the evidence presented. See 28 U.S.C. § 2254(d). Even though the supplemental instruction was erroneous under state law, the record indicates it did not have a “ ‘substantial and injurious effect or influence in determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637-38, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (iquoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)); see California v. Roy, 519 U.S. 2, 4-6, 117 S.Ct. 337, 136 L.Ed.2d 266 (1996) (per curiam) (applying harmless error standard to jury instructions that omit an element of the crime).

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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369 F. App'x 787, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morrison-v-miller-stout-ca9-2010.

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