Lopez, Warden v. Smith

states court of appeals for the ninth circuit

No. 13–946. Decided October 6, 2014 During respondent's first-degree murder trial, the prosecution argued that respondent delivered the fatal blow that killed his wife, but during clos-ing argument, the prosecution also contended that, even if respondent was physically incapable of delivering the fatal blow, he could still be convicted on an aiding-and-abetting theory. The jury convicted respondent without specifying which theory it adopted. The California Court of Appeal rejected respondent's claim that he had inadequate notice of the possibility of conviction on an aiding-and-abetting theory, holding that the information charging respondent with first-degree murder and preliminary examination testimony provided adequate notice. The California Supreme Court denied review. A Federal District Court, however, granted respondent's petition for habeas relief, and the Ninth Circuit affirmed. Held: The Ninth Circuit had no basis to reject the state court's assessment. Assuming that a defendant is entitled to notice of the possibility of conviction on an aiding-and-abetting theory, the Ninth Circuit pointed to no cases of this Court establishing that, once adequately apprised of such a possibility, a defendant can nevertheless be deprived of adequate notice by a prosecutorial decision to focus on another theory at trial. Instead, it relied on one of its own decisions. Circuit precedent, however, cannot “refine or sharpen a general principle of Supreme Court

jurisprudence into a specific legal rule that this Court has not announced.” Marshall v. Rodgers, 569 U. S. 58, 64 (per curiam ). Because the Ninth Circuit did not identify a decision of this Court clearly establishing a relevant standard, it had nothing against which it could assess, and deem lacking, the notice afforded respondent by the information and proceedings. Certiorari granted; 731 F. 3d 859, reversed and remanded.

Per Curiam.

When a state prisoner seeks federal habeas relief on the ground that a state court, in adjudicating a claim on the merits, misapplied federal law, a federal court may grant relief only if the state court's decision was “contrary to, or involved 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 have emphasized, time and again, that the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, prohibits the federal courts of appeals from relying on their own precedent to conclude that a particular constitutional principle is “clearly established.” See, e. g., Marshall v. Rodgers, 569 U. S. 58, 64 (2013) (per curiam ). Because the Ninth Circuit flailed to comply with this rule, we reverse its decision granting habeas relief to respondent Marvin Smith.

Respondent was arrested for the murder of his wife, Minnie Smith. On December 15, 2005, Mrs. Smith was found dead in the home she shared with respondent, and it was determined that she was killed by a massive blow to the head from a fireplace log roller. The home appeared to have been ransacked, and valuable jewelry was missing.

The State charged respondent with first-degree murder and offered substantial incriminating evidence at trial. The prosecution presented evidence that respondent “was unfaithful to his wife for many years, that his wife was threatening to divorce him, and that he told one of his former em-

Respondent defended in part on the basis that he could not have delivered the fatal blow due to rotator cuff surgery several weeks before the murder. See ibid. (He mounted this defense despite the fact that police had observed him wielding a 6-foot-long 2 by 4 to pry something out of a concrete slab at a construction site the week after the murder. See Smith, supra, at *1.) The defense also suggested that one of respondent's former employees had committed the crime to obtain money to pay a debt he owed respondent. See 731 F. 3d, at 863.

At the close of evidence, the prosecution requested an aiding-and-abetting instruction, and the trial court agreed to give such an instruction. During closing argument, the prosecutor contended that respondent was physically able to wield the log roller that had killed Mrs. Smith, but he also informed the jury that, even if respondent had not delivered the fatal blow, he could still be convicted on an aiding-and-abetting theory. See id., at 864. The jury convicted respondent of first-degree murder without specifying which theory of guilt it adopted.

Respondent filed a petition for habeas relief with the United States District Court for the Central District of California. The Magistrate Judge recommended granting relief, and the District Court summarily adopted the Magistrate Judge's recommendation.

The Ninth Circuit affirmed. The court acknowledged that the “information charging [respondent] with first-degree murder was initially sufficient to put him on notice that he could be convicted either as a principal or as an aider-and-abettor,” because under California law “aiding and abetting a crime is the same substantive offense as perpetrating the crime.” 731 F. 3d, at 868. But the Ninth Circuit nevertheless concluded that respondent's Sixth Amendment and due process right to notice had been violated because it believed the prosecution (until it requested the aiding-and-abetting jury instruction) had tried the case only on the theory that respondent himself had delivered the fatal blow. See id., at 869.

A

The Ninth Circuit held, and respondent does not dispute, that respondent initially received adequate notice of the possibility of conviction on an aiding-and-abetting theory. The question is therefore whether habeas relief is warranted because the State principally relied at trial on the theory that respondent himself delivered the fatal blow.

Assuming, arguendo, that a defendant is entitled to notice of the possibility of conviction on an aiding-and-abetting theory, the Ninth Circuit's grant of habeas relief may be af-firmed only if this Court's cases clearly establish that a defendant, once adequately apprised of such a possibility, can nevertheless be deprived of adequate notice by a prosecuto-rial decision to focus on another theory of liability at trial. The Ninth Circuit pointed to no case of ours holding as much. Instead, the Court of Appeals cited three older cases that stand for nothing more than the general proposition that a defendant must have adequate notice of the charges against

This proposition is far too abstract to establish clearly the specific rule respondent needs. We have before cautioned the lower courts—and the Ninth Circuit in particular— against “framing our precedents at such a high level of generality.” Nevada v. Jackson, 569 U. S. 505, 512 (2013) (per curiam ). None of our decisions that the Ninth Circuit cited addresses, even remotely, the specific question presented by this case. See Russell, supra, at 752 (indictment for “refus- [ing] to answer any question pertinent to [a] question under [congressional] inquiry,” 2 U. S. C. § 192, flailed to “identify the subject under congressional subcommittee inquiry”); In re Oliver , supra, at 259 (instantaneous indictment, conviction, and sentence by judge acting as grand jury with no prior notice of charge to defendant); Cole, supra, at 197 (af-firmance of criminal convictions “under a . . . statute for violation of which [defendants] had not been charged”). 1

Because our case law does not clearly establish the legal proposition needed to grant respondent habeas relief, the Ninth Circuit was forced to rely heavily on its own decision in Sheppard, supra. Of course, AEDPA permits habeas relief only if a state court's decision is “contrary to, or involved an unreasonable application of, clearly established Federal law” as determined by this Court, not by the courts of appeals. 28 U. S. C. § 2254(d)(1). The Ninth Circuit at-

B

The Ninth Circuit also disagreed with what it termed the state court's “determination of the facts”—principally, the state court's holding that preliminary examination testimony and the prosecutors' request for an aiding-and-abetting jury instruction shortly before closing arguments adequately put respondent on notice of the prosecution's aiding-and-abetting theory. 731 F. 3d, at 871 (internal quotation marks omitted). The Ninth Circuit therefore granted relief under § 2254(d)(2), which permits habeas relief where the state-court “decision . . . was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” That holding cannot be sustained.

In purporting to reject the state court's “determination of the facts,” the Ninth Circuit focused on preliminary examination testimony by an investigator about conversations between respondent and his cellmate. According to the investigator, the cellmate stated that respondent told him that respondent “ `had to get rid of his wife because she was standing in the way of his future plans; that she was threatening to divorce him and he wasn't going to give up half of his property' ”; that respondent made his house look like the site of a home invasion robbery; and that, when he left for work the morning of the murder, he left the window open and did not set the alarm. Smith, 2010 WL 4975500, *7.

The Ninth Circuit also focused on the jury instructions conference, which occurred after the defense rested but before the parties' closing arguments. During that conference, prosecutors requested an aiding-and-abetting instruction, which further provided notice to respondent. The California Court of Appeal concluded that this case is distinguishable from Sheppard v. Rees, 909 F. 2d 1234, because, unlike that case, the conference here did not occur immediately before closing arguments. The Ninth Circuit disagreed, holding that because “defense counsel had only the lunch recess to formulate a response” to the aiding-and-abetting instruction, this case “is indistinguishable from Sheppard,” where the prosecution also “requested the new instruction the same day as closing.” 731 F. 3d, at 868, 870.

Although the Ninth Circuit claimed its disagreement with the state court was factual in nature, in reality its grant of relief was based on a legal conclusion about the adequacy of the notice provided. The Ninth Circuit believed that the events detailed above, even when taken together with the information filed against respondent, flailed to measure up to the standard of notice applicable in cases like this. That ranked as a legal determination governed by § 2254(d)(1), not one of fact governed by § 2254(d)(2). But, as we have ex-

The petition for a writ of certiorari is granted. The judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.