David Barghoorn v. Ken Clark
663 F. App'x 533
| 9th Cir. | 2016Background
- David Barghoorn, a California state prisoner, was convicted of two counts of forcible lewd acts on a child (Counts I & II) and one count of continuous sexual abuse of a child (Count III).
- Counts I and II each required proof of a single act; Count III required proof of three or more acts under Cal. Pen. Code § 288.5.
- At trial, the court gave CALJIC No. 17.01 (stating a defendant may be found guilty if he committed “any one or more of the acts”) and CALJIC No. 10.42.6 (stating three or more acts are required for continuous abuse).
- Barghoorn did not object to CALJIC No. 17.01 at trial but later argued on appeal that it allowed conviction on Count III based on only one act, violating due process.
- The California appellate court addressed the claim on the merits under a "substantial rights" standard; the federal district court denied § 2254 relief, and the Ninth Circuit granted a certificate of appealability.
- The Ninth Circuit affirmed, concluding the instructions read together did not permit conviction on Count III based on a single act and thus did not violate due process.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Barghoorn forfeited his federal due process claim by failing to object at trial | Barghoorn: Not forfeited because the state appellate court reached the merits under a "substantial rights" standard, so federal review is available | State: Failure to object forfeited the claim | Held: Not forfeited; state court adjudicated the federal claim on the merits so no independent state-law bar applied |
| Whether the challenge is an impermissible attack on state-law interpretation | Barghoorn: Claim is federal — that the instruction violated his due process right to have every element proved beyond a reasonable doubt | State: Claim merely argues CALJIC misinterpreted state statute § 288.5, which is a state-law issue not cognizable on federal habeas | Held: Not an impermissible state-law challenge; a federal due process question exists and is reviewable |
| Whether CALJIC No. 17.01 permitted conviction on Count III based on a single act (violating due process) | Barghoorn: The disjunctive phrase "any one or more of the acts" could allow conviction on Count III for one act, failing to require three acts | State: The phrase referred collectively to acts underlying Counts I–III and must be read with other instructions; CALJIC No. 10.42.6 required three or more acts for Count III | Held: The instruction, read in context with CALJIC No. 10.42.6, correctly conveyed that Count III required three or more acts; no due process violation |
| Whether the state appellate court's rejection of the federal claim was objectively unreasonable under § 2254(d)(1) | Barghoorn: The state court unreasonably accepted an interpretation that could permit single-act conviction on Count III | State: The state court reasonably interpreted the instructions together to require three acts for Count III | Held: Not objectively unreasonable or contrary to clearly established Supreme Court law; federal habeas relief denied |
Key Cases Cited
- La Crosse v. Kernan, 244 F.3d 702 (9th Cir. 2001) (federal review barred when state decision rests on independent and adequate state-law ground)
- Michigan v. Long, 463 U.S. 1032 (1983) (state courts may construe state law; federal review limited if decision rests on adequate state grounds)
- Estelle v. McGuire, 502 U.S. 62 (1991) (incorrect state-law instruction alone is not a basis for federal habeas relief)
- Middleton v. McNeil, 541 U.S. 433 (2004) (due process requires the State to prove every element; instructions must not undermine that requirement)
- Medley v. Runnels, 506 F.3d 857 (9th Cir. 2007) (elements of state crimes are defined by state law but federal due process requires proof beyond a reasonable doubt of each element)
- People v. Jimenez, 246 Cal. App. 4th 726 (Cal. Ct. App. 2016) (appellate review of unobjected-to instruction under a "substantial rights" standard)