Sarausad v. Porter

management employees alike at remote

job Instead, above, sites.5 as discussed SARAUSAD, Cesar Petitioner-Appellee, employees job most at remote report sites directly supervisors, ed local implying that employees’ job performance and work PORTER, Carol Respondent-Appellant.

product were evaluated there. Ciar Cf. No. 05-35062. lante, 148-49 (finding genuine F.3d issue of fact as to material where sales United States Court of Appeals, employees reported, where it was unclear Ninth Circuit. weekly reports sales were re Sept. 2007. office). locally viewed at a central Novotny,

Patricia S. Esq., David B. Zuckerman, Esq., Law CONCLUSION Offices of David B. Zuckerman, Seattle, WA, for Petitioner- sum, In Plaintiffs have failed to raise a Appellee. genuine issue of material fact whether 50 Samson, John J. Esq., AGWA—Office of people more were laid off at a “single Washington, General, Attorney Crimi- site of employment” under the WARN Act. Division, nal WA, Justice Olympia, for Re- The remote construction clearly locations spondent-Appellant. do not as a qualify single site employ- 639.3(i)(l)-(5). ment under respect With

to subsection of the regulation, there is

no evidence employees that NLL at re-

mote construction projects physically re-

ported Billings during the course of the projects, that Billings originated work or Before: REINHARDT, STEPHEN W. was responsible for day-to-day man- FLETCHER, BYBEE, and JAY S. Circuit agement of workers Judges. locations, remote project construction directly reported workers their Order; Dissent Judge CALLAHAN. progress to Billings. Judge Reinhardt and Judge W. Fletcher deny voted to petition for rehearing en

Accordingly, the judgment of the district banc. Judge Bybee grant voted to court is AFFIRMED.

petition for rehearing en banc. A judge of the court called for a vote on petition for rehearing banc. A en vote taken, and a majority of the non- judges recused active of the court failed to vote en for banc Fed. rehearing. R.App. 35(f). P. petition rehearing banc, en filed

March is DENIED. Indeed, improbable manager that a because of the material nature the work Billings evaluate would the work product or product in this case. performance of remote construction workers face of why the analysis of avoiding concerning Petitioner initial order —in VACATED, and Wash- and the Washington custody is Sarausad’s affirming remand on decisions is instructed court ington appellate court district in remain should Sarausad the decide issue jury instructions the to re- decision the state’s custody pending accom- the limits of principles him. try Washington law—the liability under plice objectively un- were decisions court whom Judge, with CALLAHAN, Circuit specific of a Su- applications reasonable BYBEE, and GOULD, O’SCANNLAIN, majority holding, panel the preme Court dissenting from join, BEA, Judges, Circuit AEDPA. apply properly fails to en rehearing banc: of the denial of denial from the respectfully dissent I di- was taken I. The ma- panel because the rehearing en banc complic- Washington rectly the deference proper give fails to jority ity statute. interpre- Washington Supreme language analysis is to our Central liability Washington’s accomplice tation of and the statute Washington’s complicity a case fundamentally This is statute. giv- jury instruction language of the actual right to define state’s Washington about The Revised Code case. in Sarausad’s en un- accomplice parameters (“RCW”) codi- § 9A.08.020 Washington law. The its own state der Washing- complicity under liability for fies law but misinterprets only (2) 9A.08.020,subsections law. ton Section accord refuses to also stating by (3) liability, required define required deference prin- basic precedent and part: established well in relevant so, the doing By ciples of federalism. legally accountable person A is it considers what majority elevates when: person another conduct of mistake state court’s to be law into Washington state interpreting in other (c) accomplice of such He is an a result violation. As a constitutional crime. in commission of person deference, takes our court lack of our another accomplice of is an person A a stan- rejecting step unprecedented if: a crime in commission person jury instruction dardized (a) promote that it knowledge will With expressly Court has Washington Supreme crime, commission the limits facilitate the correctly stating or approved as law. liability under state he commands, or (i) encourages, solicits, to state deference it; commit person to such other requests was rein of state law interpretations 28 U.S.C. supplemented by forced 2254(d)(1) Antite passage after per- other (ii) aid such agrees aids Penalty Act Death and Effective

rorism it; or committing planning in son simply (“AEDPA”). majority opinion (b) declared expressly is His conduct in specific Supreme Court’s ignores complicity. his law to establish Taylor, 529 U.S. in structions Williams trial, trial court During Sarausad’s explain Instructions gave highly (2000), apply how on 45 stated: liability. Instruction “unreason “contrary to” and deferential person that a You instructed prec Supreme Court application of’ able if it is committed of a By guilty crime from AEDPA. edent standards another system for which “that a state interpretation legally

he is accountable. A person of state one including announced on legally accountable for the conduct of appeal direct conviction, the challenged another he when is an accomplice binds a federal court sitting of such other the commission corpus.” Bradshaw v. Richey, 546 U.S. of the crime. 74, 76, 126 S.Ct. 163 L.Ed.2d 407 (2005); T, see also West v. AT & Porter, (9th U.S. 223, 236, Cir.2007). 85 L.Ed. 139 Instruction 46 accom- defined (“[T]he highest court of the state is the liability for plice as follows: final arbiter of what is state law. When it A person is an in the com- spoken, has pronouncement its is to be if, mission of a crime with knowledge accepted by federal courts as defining that it will promote or facilitate the com- law....”). state principle This applied to crime, mission he or she either: federal habeas review of state convictions (1) solicits, commands, encourages, or long before AEDPA. See Mullaney requests another to commit the Wilbur, U.S. crime or (1975) (“state L.Ed.2d 508 courts are the (2) aids or agrees per- to aid another expositors law”). ultimate of state A fed son in planning or committing the eral circuit court if errs it interprets a crime. legal state doctrine in a manner that di The word “aid” means all assistance rectly conflicts with the state supreme given words, acts, by encour- interpretation court’s of the law. See agement, support presence. A per- Bradshaw, 546 U.S. at 126 S.Ct. 602 son present who is at the scene and (“Because the Sixth Circuit disregarded ready to assist his or presence her is Ohio in authoritative aiding in the commission of the crime. terpretation of Ohio ruling its on suffi However, more than presence mere and ciency erroneous.”). of the evidence was knowledge of the criminal activity of an- It does matter that the state supreme other must be shown to establish that a court’s statement of the law was dictum if person present is an accomplice. it is perfectly clear unambiguous. Id. added). (emphasis Id. at 685 n. 1 There is 76, 126 S.Ct. 602. no difference between statute and the A determination of state law a state instruction, with the exception that appellate court is also binding in a federal phrase replaces “the crime” the word Feiock, action. See Hicks v. “it” in instruction. 624, 629-30, U.S. 630 n. panel majority II. The does not follow 99 L.Ed.2d 721 (noting state appel- binding Washington Supreme Court late court’s determination of state is law precedent give prop- and fails to binding deference). and must be er deference This especially where highest true Appeals, resulting in a court in the state has denied review of the misinterpretation lower court’s decision. West, see also Id.] accomplice liability law. (“This 61 S.Ct. 179 is the courts, As federal we accept must where, more case, so inas this the highest Washington’s state courts correctly applied court has refused to review the lower Cone, Washington laws. Bell v. court’s decision rendered in phase one very L.Ed.2d 881 the litigation prosecuted which now majority fails follow by parties same before the federal the fundamental court.”). principle of our federal law, misinterpret Washington’s accom- why we exactly these illustrates

This case find a federal due plice statute and of deference principles long-standing con- phantom violation based on process courts and the the federal comity between Washington Supreme Court interpreting flict between courts exist —because state A closer review appellate court cases. a core function of law is not state Washington case law reveals that to of expertise we lack the federal case appellate opinion this importantly, More state interpret state laws. authority long with a line of reinterpret rewrite or is consistent authority lack we actually may approving au “[O]nly law. state courts case, used thoritatively construe statutes.” Am., Gore, consistently approved courts have N. Inc. v. BMW of 1589, jury 559, 577, 134 809 instruction. 116 S.Ct. L.Ed.2d Goode, (1996); v. 464 Wainwright also see A. The comes to a conclu- 378, 78, 84, 187 104 78 L.Ed.2d S.Ct. U.S. directly contrary sion curiam) (“[T]he (1983) views of the (per Supreme precedent Court Wash- to state respect court with highest state’s ington state law. courts.”). on the federal binding law are es axiomatic that “our Constitution It is ex Washington Supreme Court be system sovereignty of dual tablishes a jury at is pressly adopted the instruction the Federal Govern the States and tween Washington’s sue as a correct statement Ashcroft, Gregory v. 501 U.S. ment.” liability very law in the case the accomplice 410 111 115 L.Ed.2d majority cites to overturn the (1991). law possess inherent The states trial and di instruction. After Sarausad’s authority respect making Washington Supreme appeal, rect —both law. See New York statutory and common Washington’s limits of clarified the Court States, v. United (Wash. liability law Rev.Code accomplice (1992) 2408, 120 (holding 9A.08.020) Roberts, § in State may Congress that not commandeer (2000).1 471, 14 Wash.2d States). When processes of legislative held that Washington Supreme Court conflicts statute or common law a state depart “improperly instruction Constitution, we States with the United the statute” creat language ed from law to be null will declare the state impose that a could possibility ed the void, authority to alter or but we have no any for liability on an strict reinterpret state law. long as the accom by principal so acts “a would commit plice principal knew the normally giv- deference By ignoring the crime.”2 Id. at 735-36. concerning state en to state court decisions Arizona, and Tison Washington Supreme Court also inter- 1. The 95 L.Ed.2d degree Washington's aggravated preted first (Wash. Rev.Code statute murder 10.95.020), partic- “major § and held that in Rob- full text of the 2. The giving rise ipation a defendant in the acts erts, part by quoted relevant the Wash- in to exe- the homicide is in order ington Court read: solely as an ac- cute a defendant convicted guilty premeditated degree person complice first mur- are instructed that a You brought Washington by the conduct of if it is committed der.” Id. at 733. This a crime legally ac- conformity person for which he is with the another law Florida, legally accountable A precedent from Enmund v. countable. 782, 784-798, another when he for the conduct of 73 L.Ed.2d noted that it promote RCW will or facilitate the com 9A.08.020(3)(a) patterned Roberts, § after Mod- mission of the ....’”3 crime 2.06(3)(a), § el and that Penal Code (quoting jury P.3d at 736 instruction from commentary required “ Davis, 884-85); Allen, 682 P.2d at State v. promote purpose

‘have the or facilitate Wash.App. (“Roberts conduct that particular basis expressly approved of the ac forms states, charge’ ‘he will not be complice State for that does not ”). liable within Davis.... The Roberts court then reaf for fall ” purpose.’ (quoting Id. at 735 Model “that impose firmed Davis does not strict 6(b) (1985)). cmt. Penal Code 2.06 liability accomplices any on for and all Washington Supreme Court summarized crimes merely long but reaffirms our holding its as follows: standing rule that an accomplice need not knowledge of “the crime” is suf- specific

General have knowledge every element Nevertheless, knowledge by ficient. of the crime principal, committed principal intends to provided general knowledge he has Roberts, “a crime” does not impose specific commit strict crime.” 14 P.3d at 736. any case, Cronin, and all companion offenses In a State v. interpretation follow. Such an (2000), is con- Wash.2d 757-58 trary plain statute’s language, to the its Washington Supreme the Court followed Roberts, history, legislative supporting and case approval but also cited with Davis law. support the idea under state liability accomplice criminal for an may be Roberts, 14 P.3d at 736. imposed only long as as the defendant has In reaching jury its conclusion that the general knowledge of “the crime” for incorrect, in instruction Roberts was the which eventually charged. he or she was Washington Supreme distinguished case, Under the facts of this the panel approved prior reasoning its in State majority correctly Davis, finds sufficient evidence 101 Wash.2d 682 P.2d 883 accomplice Sarausad was at least an court The Roberts noted “the Davis, degree to second jury in the murder. There were unlike here, copied exactly the numerous discussions re- lan- guage accomplice liability turning High to Ballard to intimi- statute: School accomplice a conviction as an date the rival gang. allowed for accomplice knowledge if the ‘with pick up acted 680-81. Sarausad drove to accomplice person person accomplice is an of such other in A is an in the commis- crime, if, knowledge the commission of a crime. sion of a with that it person accomplice promote A is an in the commis- will or facilitate the commission of crime, crime, present sion of a at the time he or she either: not, if, 1) solicits, commands, knowledge encourages, of its commission or or re- crime; quests person promote another to commit the that it will or facilitate its commis- sion, or he either: 2) solicits, commands, (a) agrees person aids or to aid another in encourages or re- crime; planning committing quests the crime. person another to commit the The word “aid'' means all assistance wheth- words, acts, given (b) by encouragement, er planning aids another in or com- support presence. pres- A who is mitting the crime. Roberts, ready ent at the scene and is to assist his 14 P.3d at 735. presence aiding or her in the commission 3. The instruction in Davis read fol- crime. Davis, lows: 682 P.2d 884-85. noted Appeals Washington Court at 682. Id. gun. had a member who gang exact proffered the circled that Sarausad testified Witnesses defendant case, times, and one in several Sarausad’s school instruction used high same gun. displayed liability of his car occupants instruc- and that “[t]he Furthermore, by the drove Sarausad Id. the instruction proposed, not Moran tion down, wait school, slowed steps of is the correct statement gave, shots to ten to fire four Ronquillo ed for only liability.” The law of 675, 682. away. Id. at speeding before was Sarausad a case is not where This have under Roberts found deficient have murder relat degree of second convicted in a clause other “a crime” phrase used fraud abetting a aiding and to his ing in the is an “A defendant than theft; of strict type petty aor scheme In each of of a crime....”5 commission any crime that liability for in a cases, language the “a crime” these contemplated held knowledge explaining clause Thus, § the distinction 9A.08.020. by RCW created the over- of the defendant or acts is not and “the crime” “a crime” between state law. error under breadth one, cases, where such as relevant in- examining Every decision willing present defendant case, as well See State struction Sarausad’s acts of the facilitate the shooter. 9A.08.020, Vincent, has determined that Wash.App. as RCW passenger (concluding properly adequately the instruction in a drive shooter necessary and abetted aided intent informs the shooting). find criminal Supreme Court ex- Washington law. The disap has ever Washington court No jury instruction pressly declared that tracked jury a instruction

proved of liability on impose not strict given does In 9A.08.020. language of section exact Roberts, 14 P.3d at 736. defendants. to the one fact, jury instructions identical jury clearly holds that the law Washington express in case have been Sarausad’s used proper a state- in this case was instruction the Rob and after ly both before approved Moran, Washington’s ment 119 In erts decision.4 State (2003), 197, 122, law. 129-30 81 P.3d Wash.App. 395, (2) O'Neal, in agrees aid another Wash.App. aids or 109 126

4. See State crime.”). 429, (2005) (analyzing committing exact planning 441 P.3d that, “[h]ere, concluding does language at issue in Cronin 438, instructional Evans, 114 154 Wash.2d 5. See State v. 16 referred exist because instruction ("with 627, (2005) knowledge 634 P.3d 16 did not misstate Instruction crime.' 'the the commis- promote will facilitate that it ” fails”); Harry's argument State v. law and the Bookman, agrees to aid "aids or of a crime sion 925, 474, Wash.App. 682 P.2d 37 committing a planning or person in another ("There (1984) to the was no error as 936-37 Berube, crime”); 150 Wash.2d 79 State v. of the mental state (2003) (same); State v. P.3d 1147-49 Allen, at 659 66 P.3d accomplice.”); see also Brown, P.3d 893 Wash.2d 58 147 where (concluding was Roberts error there no Cronin, (same); (2002) 14 P.3d at person is an ac "A instruction stated: Roberts, (after (same); "a P.3d at 735 if, the crime complice in the commission of crime,” knowledge promote that it will "with promote knowledge or facili that it will Smith, "); In re or facilitate its commission crime, she he or the commission of the tate Wash.App. commands, solicits, encourages, or either: Evans). (same as crime; commit the requests another panel majority ignores Yet the both the B. Defining the Washington limits of approving statute and the cases of the state’s accomplice liability law does instruction, concluding in not impermissibly any the Wash burdens shift rejected Winship. ington Supreme “very a Sarausad, similar” instruction. See majority fails to any cite to panel majority ignores F.3d at 690. The authority Washington’s definition of Roberts, specific language 14 accomplice liability violates a “fundamental 736, approving P.3d at of the instruc principle, so as to limit the traditional rec- tion used Sarausad’s case. Id. The ma ognition capacity of a State’s to define jority Washington Ap takes Court of Arizona, crimes and defenses.” Clark v. - peals following Washington to task for -, Court’s decision Roberts and (2006); see also Stanton approving the instruction language Benzler, (9th Cir.1998) that copied RCW 9A.08.020. Id. at 691. (noting “a state generally free within Appeals, Court of howev broad limits to define the elements of a er, properly noted that the particular Roberts court offense” and shielding from ha- upon language relied from the a Model Pe beas review state law determination that commentary poison nal Code that an arsenic trioxide as a matter of law). purpose promote has “the or facilitate pronouncement particular the ba forms approved in Davis are a correct statement charge.'” sis In re liability includes situations

Wash.App. consequences where the reasonably Directly quoting reasoning (as foreseeable opposed to imposing strict Washington Supreme Court is neither im committed) liability for any crime should proper for a Washington Appeals, Court of all, be conclusive. After the last word on improper nor an application of state law. parameters Washington’s accom- Therefore, panel majority’s conclusions plice liability “belongs law neither to us directly conflict with the Su nor to the district court but to the su- preme Court’s and Washington appel preme [Washington].” R.R. late courts’ about scope decisions Co., Comm’n Texas Pullman 312 U.S. of accomplice liability propriety and the of 496, (1941). 500, 643, 61 S.Ct. 85 L.Ed. 971 the in instructions Sarausad’s case. McGuire, 62, Even Estelle v. 502 71- U.S. accept must binding Washing- We as the 72, 475, 112 (1991), 116 L.Ed.2d 385 ton Supreme express approval of the upon by case relied majority opin- the the instruction and the statute as accurate ion, recognized “the fact [jury] that the and proper Washington’s statements of ac- allegedly instruction was incorrect under complice Bradshaw, liability law. 546 U.S. state law is not a basis for habeas relief.” 76-78, at 126 602. Having deter- Just panel majority because the feels that mined that there no state law error the Washington of Appeals’ Court inter- from accomplice the use of the liability pretation of the accomplice liability law to case, instruction in Sarausad’s the allow for foreseeable consequences op- as question becomes RCW posed to liability strict is incorrect does 9A.08.020, § by defining accomplice liabili- justify not grant of corpus. habeas ty, violates the Godinez, Due Process Clause 734, See Duckett v. impermissibly (9th Cir.1995) (“The shifting the proof burden of fact that a in- from the state to Sarausad. inadequate by struction is Ninth Circuit offense, independent elements rather than a mean does not standards appeal direct liberty crime, simply we inadequa- an on such relies who petitioner a and conclude relief from ignore that determination to to be entitled cy will conviction.”). fact, are, indepen- that alternatives law.” Schad v. elements under dent burden where the not a case This is 636, 2491, 624, 111 S.Ct. 501 U.S. Arizona a beyond something other than proof (1991). Winship, 397 In re doubt. See reasonable pur- the idea that rejected in Schad Court 1068, 364, 25 L.Ed.2d 90 S.Ct. of lia- statutory, alternative theories suing where the this a case Nor is shifted impermissibly bility somehow prove a defendant to requires the statute Id. at proof from state. an element burden negates that defense 631-32, concerning 111 S.Ct. presumption a or created crime Rather, of the crime.6 element an Supreme Court has petitioner on the habeas remains burden 9A.08.020, § interpreted RCW never liability are “so limits that show Davis, requiring jury instruction and conscience in the traditions rooted a creating proof lesser standard a fundamem ranked as as to be people our accomplice liabili- presumption process support due in order to tal” fact, In ty. Egelhoff, 518 U.S. Montana claim. prosecution reiterated Court 135 L.Ed.2d 116 S.Ct. a reasonable prove beyond omitted). Sa (internal marks quotation aid, abet, facilitate, etc. intent to doubt that some showing no has made rausad act particular constitutes liability is a fun complicity codification Cronin, 14 9A.08.020. RCW crime law, or of criminal principle damental at 758. defini rooted, Washington’s deeply majority’s citation Despite vio liability somehow tion explain, as our it fails to Winship, re In New Patterson v. See principle. lates concerning ac- require, burden which cases 201-02, York, 97 S.Ct. instruc- challenged complice funda (discussing L.Ed.2d 281 defen- the state shifted tion of due purposes principles mental Allen, F.3d H. v. See Juan claims). dant. process Cir.2005) (9th (noting equal cat has defined be in “reference inquiry must protection “fun that violate egory as set the criminal offense elements narrowly. very fairness” damental law”). by state forth Estelle, case hold- any Supreme cite fails States, 493 U.S. Dowling v. United (citing an overstatement of ing that 107 L.Ed.2d burden shifts the liability impermissibly fact, Court stat (1990)). In to the defen- prosecutor from the proof have deter a ed, that State’s “[i]f theories of only case discussing dant. statutory alternatives certain mined Arizona, liability, 501 Schad committing single a mere means are 307, 317, consequences of Franklin, presumed intend the is 471 U.S. Francis See 703-04, (1985) (hold actions); 1965, Mullaney, 344 85 L.Ed.2d their re mandatory, presumptions that re ing (finding rebuttable Maine statute 95 S.Ct. 1881 unconstitutional); Sand by garding passion intent prove heat of quired defendants Montana, strom unconstitu the evidence preponderance of a 2450, (invalidating 61 L.Ed.2d 39 tional). stating a defendant Montana instruction 631-32, 2491, rejected Sarausad, the idea sound. See 479 F.3d at alternative pursuing theories of liabili- 693. The fails to appreciate, ty however, shifted impermissibly the burden of that this a proper argument proof Winship and Mullamy. The concerning Washington’s felony murder rule, Washington Supreme approval theory alternative charged against the statute and the instruction as in Sarausad. See In re 39 P.3d at case, means that Sarausad’s there was no 312 n. 2 (noting all three defendants Winship/Mullaney issue this case charged be- degree the second felony simply cause RCW 9A.08.020 defined Fernandes); murder of Melissa see also what was to find lia- Wanrow, 301, State v. 91 Wash.2d 588 P.2d Stanton, bility. 1320, F.3d at 728. 1323-24 (holding assault can Nothing Washington’s about definition predicate serve as the felony felony for a accomplice liability, or the conviction).7 Furthermore, murder concerning accomplice liability impermissi- prosecutor’s hypotheticals: a hold- bly prosecution shifted a burden from the ing the arms of the victim during an as- Accordingly, to Sarausad. neither the Due sault and the driver for a robbery bank Winship Process Clause nor proge- its were appellate based on state court deci- ny allow a federal court to hold that an sions about aiding abetting liability.8 ordinary accomplice liability definition of prosecutor, by analogizing Sarausad’s unconstitutional. conduct of driving Ronquillo to the scene slowing Ronquillo down to allow to fire prosecutor’s arguments C. The were not at the victims to an accomplice who holds improper statements in the context of someone’s arms principal while the beats the trial and state law. the victim to death was not outside the panel majority makes much of the accomplice liability. bounds of See Rob- erts, argued fact that the an “in prosecutor for 14 P.3d at (noting the Model dime, theory, a a dollar” insisting for Penal Code commentary that the accom- prosecutor’s argument that the made plice must purpose “have the to promote accomplice liability jury un- particular facilitate the Haack, 7. State v. Wanrow was reversed In re An Wash.App. 958 P.2d dress, (1997) ("Where 147 Wash.2d 56 P.3d people several beat up Washington Legislature a then on victim at the same time and the great bodily injury victim suffers predicate clarified that assault could be a from the beating, may felony felony possible not be for murder in the State to 2003. See 2003 prove responsible which Leg. §§ for in- Wash. Adv. Serv. ch. 3 1-2. flicting life-threatening injury; it is suffi- participants cient to convict all of the if the Carothers, 8. See State v. 84 Wash.2d prove State can life-threatening inju- (1974), disapproved on other ry partici- was inflicted one or more of the Harris, grounds by State v. 102 Wash.2d pants during beating and that at least one (1984) ("Whether 685 P.2d he holds participants great intended to inflict victim, lookout, gun, keeps holds a harm.”). bodily assailant, by ready help stands or aids way, participant.”); in some other he Davis, Washington Supreme In Trout, Wash.App. State v. further, stating went long that "the law has (2005) (finding sufficient evidence to recognized accomplice, having agreed that an accomplice convict as an act, where defendant participate to in a criminal runs the risk residents, plan knew about the to rob armed having primary scope of the actor exceed the co-defendants, willing the provide and was to preplanned illegality.” of the 682 P.2d at backup though even he intended to Washington Supreme rob a 886. The Court has not apartment); who wasn't at the questioned point. State v. overruled or Davis on this conflicts opinion ”). deference. Finally, proper charge the the basis for forms precedent binding Supreme that Sarau- arguments prosecutor’s the throughout attempt- a driver as participation mandating that we'refrain sad’s convicting justified act and afterward liability the when the of to define elements ing was a state law Washington him and made a clear court has supreme state abetting aiding proper statement the appli- unambiguous statement what Vincent, at 124- murder. See the Bradshaw, 546 U.S. at state law is. cable facili evidence (finding sufficient 602; Bains see also as a look who served passenger tation Cir.2000) (9th Cambra, shoot driver could so the and ducked out deference of review and (stating standard during a side window passenger the out interpret- supreme court cases to state due In re by shooting); drive gang related court, law). we As a federal ing state (concluding Smith, P.3d at to rewrite expand not our duties should driving to continue willingness defendant’s Instead, instructions. jury laws and state kidnapped who robbed co-defendant pronounce- specific the must defer to we facilitat evidence of was sufficient victims Court, Washington of the ments crimes). ing the in this that the instruction conclude argument prosecutor’s in the Nothing Washing- scope of properly stated case need did not prosecutor stated law, and reverse ton’s Rather, the crime. every element of prove corpus. grant district le- arguments presented prosecutor’s liability under Wash- theories of gitimate proper- panel fails is no evidence III. There

ington law.9 re- instruct ly deferential properly apply AEDPA’s court failed trial prosecu- was on that the burden quirements. elements of all the prove tion Ap- Court of Washington if Even a reasonable doubt. liability beyond conclusion incorrect reached peals prosecu- majority’s discussion support law, this would state about context, fails taken out of is argument tor’s It also AEDPA. a writ under issuance theories, and is consider alternative burden post-AEDPA with our conflicts premise that on the false based Blodgett, in Lambert decisions proof result, a erroneous. As Cir.2004) (9th (applying F.3d 973-76 be may not comments prosecutor’s to determi- AEDPA standards that an argument deferential a weak to bolster used courts), by the a correct that was statement nations Terhune, un- or 955- erroneous law was somehow Bruce v. F.3d Cir.2004) (9th stan- (applying constitutional. AEDPA credibility that witness to a claim dards misinterpretation majority’s burden instructions lessened avoid- have been could Washington law proof). by giving the ed a Aiding agreeing to aid or par "anyone who

9. Under charged crime plan commit person to a crime ticipates in commission of a liable as a defendant to make charged a sufficient and should be guilty of the crime McDonald, 138 State principal. degree nature regardless principal, 680, 981 P.2d Wash.2d Whether he holds participation. of his liability under Wash lookout, victim, (analyzing keeps stands gun, holds no concluding there is assailant, ington law aids in some ready help the Carothers, requirement). proximate causation participant.” way, he ais other A. The AEDPA standards Supreme established precedent Court codified 2254(d)(1) § 28 U.S.C. are manda an objectively made applica- “unreasonable

tory binding. tion” of Supreme precedent). Court majority’s apply The failure to AEDPA’s 1. panel majority fails to make suffi- “contrary to” or “unreasonable application cient findings for granting habeas to clearly of’ established Federal law stan support an argument that the Wash- clearly dard is erroneous and conflicts with ington Appeals Court of decision was Supreme precedent Court mandating their “contrary clearly to” established Fed- application. AEDPA amended 28 U.S.C. eral law. § 2254 to federal corpus restrict grants prisoners cases where A finding that the state court decision proceedings state court “resulted in a “contrary clearly to” established Su- to, contrary decision that was or involved preme Court precedent, requires a deter- of, an application clearly unreasonable es mination that either “the state court ar- tablished Federal as determined rives at a opposite conclusion to that the Supreme Court of the United States.” reached Supreme [the on a Court] 2254(d)(1). 2254(d)(1) § 28 U.S.C. Section question of law” or “the state court con- independent grounds creates two for fronts facts materially that are indistin- granting habeas relief to a prisoner: guishable from a relevant Supreme Court (1) that the state court’s determination was precedent and at a opposite arrives result “contrary Supreme precedent, to” Court Supreme Williams, [the Court].”10 that the state court’s decision was U.S. at 120 S.Ct. 1495. application” “unreasonable of Supreme Court has never held that an accomplice Williams, precedent. 529 U.S. liability statute, any similar statute or 1495 (approving instruction, was unconstitutional or Fourth interpretation Circuit’s impermissibly shifted the burden of proof 2254(d)(1) § contains two independent from the state to the defendant. The Su- relief). grounds for Section 2254 sets preme Court has also not confronted facts forth a “highly deferential standard for materially indistinguishable from evaluating state court rulings,” Lindh v. Sarausad’s case. The majority’s failure to Murphy, 333 n. identify any applicable precedent, point (1997), 138 L.Ed.2d 481 that “de any part of the Washington Court of mands that state court decisions be Appeals opinion directly contrary the benefit of the doubt.” Woodford precedent precludes re- Visciotti, liance on “contrary prong to” curiam). (per L.Ed.2d 279 2254(d)(1). however, majority, identify fails to the specific ground granting relief to 2. panel majority failed to make suf- Sarausad on his accomplice liability in findings ficient justify granting ha- struction Compare claim. beas because the state court decision F.3d at 676-77 (stating two-part stan was an application unreasonable dard) with id. at (discussing Federal law. accomplice liability instruction without finding that the Washington Ap Assuming Court of that the majority granted ha- peals “contrary reached a result clearly to” beas based on an applica- “unreasonable 10. Clearly established Federal law "refers to Court’s] decisions.” Id. dicta, holdings, opposed to the [the deference. accord directions to binding then precedent, Court Supreme tion” of — -, Brown, at U.S. v. apply to Uttecht fails opinion majority’s 2224, 2218, 167 L.Ed.2d “[u]nder holding 127 S.Ct. Court’s clause, a federal require- AEDPA application’ that the (stating ‘unreasonable if the the writ may grant di- “additional, binding, court habeas and are ments governing correct identifies deference”). court accord to rections decisions from principle legal gave in Williams Court The principle to unreasonably applies but on courts to federal directions specific case.” prisoner’s of facts “unrea- “contrary to” and apply how to 413, 1495. Williams, at S.Ct. Supreme Court application” the ‘un- making sonable court habeas federal “[A] Con- of AEDPA. ask inquiry should standards precedent application’ reasonable application of language specifically the state included gress objec- law was federal habe- clearly granting established from courts federal prevent 409, 120 S.Ct. at Id. tively unreasonable.” broad lan- casually citing to corpus application unreasonable “[A]n 1495. justify opinions Court guage incorrect from an is different law federal of habeas denials court overturning state 410, 120 Id. at law.” federal application however, does majority, The relief. may court federal “[A] 1495. princi- at by pointing broad precisely because simply the writ not issue at Winship, 397 U.S. In re from ples, independent judg- in its concludes court Montana, 442 v. Sandstrom 90 S.Ct. decision the relevant ment that Estelle v. 99 S.Ct. at U.S. law er- federal clearly established applied 72, 112 S.Ct. McGuire, U.S. at Rather, that ap- incorrectly. roneously or analysis required over the glossing Id. be unreasonable.” must also plication Williams, at U.S. ‘unrea- “Under the 1495. 411, 120 S.Ct. at Porter, 479 Sarausad 1495. See habe- clause, a federal application’ sonable to make (failing 683-84, 689-94 at F.3d the state if the writ may grant as court AEDPA). prongs the two findings under legal governing correct court identifies under both analysis findings The but decisions this Court’s principle are stated Williams AEDPA prongs to the principle applies that unreasonably not should optional. We mandatory, not at case.” Id. prisoner’s facts of of AED- application with the so cavalier be 1495. us has Supreme Court PA when any majority fails on how instructions and detailed specific applica- “unreasonable analysis under standards. the deferential apply 2254(d)(1). See of 28 U.S.C. tion” clause Because 479 F.3d 689-94. legal Appeals’ any discussion Court contain 3. does involved, why the objectively principle decision princi- application Appeals’ reasonable. unreasonable,” the “objectively ple essentially argues opinion apply properly fails opinion majority’s case was in this See Mitchell standards. the AEDPA because ambiguous Esparza, results conflicting come have (2003) (admonishing because liabili- however, failed to Appeals, “[t]he Porter, Sarausad section”). ty. See apply, this cite, much less cannot, not, dem- has Sarausad AEDPA deference requirements onstrate that the state appellate court’s of appeals’ decision makes it objectively objectively decision was unreasonable. unreasonable, much less an objectively un- reasonable application of Supreme Court above, As noted the Washington Su precedent. Court has never preme Court drew a clear line between disapproved of the Model Penal Code con- permissible jury instructions that scrupu cerning accomplice liability, any statute lously § follow RCW imper 9A.08.020and similar to § RCW 9A.08.020as unconstitu- missible jury instructions that create the tionally ambiguous.13 inference that a defendant can be strictly liable for any subsequent offense commit This case was not upon before us direct ted his codefendants if he aids and review. We were under abets them in the Williams, commission of any U.S. at Roberts, crime.11 14 P.3d at 736. Given analyze whether the court ap- language peals identified a correct principle under expressly approving of jury Davis Supreme Court precedent but applied the crime,” instruction that uses “the instead principle in an objectively unreasonable crime,” of “a the Washington Court of manner. majority failed to con- Appeals was well within the bounds of duct this inquiry, and even under state reason to conclude that instruc cannot show that the appellate tion in this case was an accurate statement court’s analysis was objectively unreason- the law.12 See In re 39 P.3d able. AEDPA was designed specifically to Subsequent 318. cases following the avoid unfettered review of the reasonable- court of appeals’ reasoning in this case and ness of state court decisions. Sarausad concluding instructions that fol has not any demonstrated objectively un- low the language § of RCW 9A.08.020are application reasonable of Supreme Court correct, demonstrate that precedent, the state therefore, AEDPA, under our approach was objectively duty reasonable. was to deny petition. his O’Neal, 441; Allen, 109 P.3d at 66 P.3d at B. The majority’s opinion engages in Furthermore, 659. the state court ap improper de novo review without peals properly could hold that the limited giving Washington Ap- prosecutor’s nature of the argument in the peals’ legal conclusions about state of this circumstances case were within the law any in violation bounds of Washington’s deference accomplice liabili v. Taylor. Williams ty law based on prior case law. See Car others, 736; Haack, 525 P.2d at The majority’s opinion improperly ana- at 1003-04. Nothing about the state court lyzes the jury instruction de novo and sim- 11. Of course correct statements of state law review, cerned federal statutes on direct proof the burden of Liparota are not constitution- interpretations of state statutes. See ally Bruce, erroneous. See 376 F.3d at 956 States, 419, 424, United (concluding that comport 85 L.Ed.2d 434 (discussing Winship and state law were not constitu- 2024(b)(1)); § U.S.C. Staples v. United erroneous). tionally States, 600, 604, (1994) (26 5861(d)); § U.S.C. Considering appeals court of relied States, v. United Ratzlaf upon Washington Supreme Court’s own (1994) (31 126 L.Ed.2d 615 Roberts, language from surprising is not 5322(a) 5324(3)); §§ U.S.C. United States supreme that the state court refused to review Speach, (9th Cir.1992) the decision. (42 6928(d)(1)). U.S.C. 13. cases cited majority con- cerning ambiguous jury instructions con- law.14 instruction Washington Court concludes ply recognize majority’s failure incorrect, instead The decision Appeals’ approved state Washington principle legal what identifying as a in this case unreason “objectively given applied law was setting aside Wash By statement correct manner. able” prece- conclusion Supreme Court legal contrary to Appeals’ directly ington Court Bradshaw, Sarau U.S. at dent. statement proper a credit was failure to case (holding sad’s 602 S.Ct. con majority law, panel the Washington pronouncement Court’s Supreme Ohio in Lambert opinion applied with this flicts intent of transferred doctrine the 975-76, because at F.3d Blodgett, 393 v. opposite reaching the murder felony to can above (and, discussed as to find fails error). deciding to con- By conclusion legal conclu And) courts’ the state instruc- review a de novo duct unreasonable objectively were sions Washington’s and tion Court Supreme established contrary to the deferential applying law instead majority Rather, panel precedent. majority standards, panel AEDPA ato amounts what undertake to proceeds a re- reaches and its mistake compounds improper allegedly review direct our Court Supreme contrary to sult Estelle, at precedents. own Sarausad, 479 475. 71-72, S.Ct. has Supreme Court at 689-94. F.3d CONCLUSION after again time time reiterated for the respect a lack of This case shows cannot court Williams, a federal principles that violates courts state undertaking a de relief habeas grant deference traditional and our federalism con a different reaching review novo interpret highest the states’ See Yarbor courts. the state than clusion misinterprets panel law. Alvarado, v. ough liability statute Washington’s (2004); Wood 2140, 158 L.Ed.2d S.Ct. case law 357. ford, in- liability jury concerning the im approach majority’s Additionally, As a case. in Sarausad’s in a fact structions “[t]he because proper panel result, premise entire by Ninth Circuit inadequate struction is of habe- grant a not mean affirmance majority’s does standards appeal direct addition, inadequa In such flawed. corpus on relies who petitioner a relief to follow failure majority’s be cy will entitled Duckett, AED- F.3d apply on how conviction.” at- mistake its initial compounds 744. PA accom- Washington’s interpret tempting indepen- after case, majority, In Finally, the liability statute. plice with review, disagrees simply dent to the approach majority’s and fails Appeals, Washington Court analysis error harmless Appeals’ inquiry based AEDPA proper in Medi- approach prior our conflicts legal deter- the reasonableness into (9th 1120, 1126 F.3d Hornung, 372 na v. propriety minations Wright, Peltier law. plication of state Appeals Washington Court of Even if 14. Cir.1994) (quoting Middle (9th F.3d application of wrong in its (9th Cir. Cupp, 768 F.2d ton not available corpus are of habeas writs 1985)). ap- interpretation or alleged errors in Cir.2004), and the Fidelity Court’s man- Exploration and Production date in Mitchell v. Esparza, 540 U.S. at Company; Anadarko Petroleum Cor Therefore, I dissent from poration; our Energy Devon Corporation; decision not to rehear this case en banc. Powder LLC; River Gas Pinnacle Gas

Resources, Inc., Defendants-Interve nors-Appellees. Cheyenne Northern Tribe, a feder

ally recognized tribe; Indian Native Action, a non-profit corpo Montana ration; Northern Plains Resource Council, Plaintiffs-Appellees, Norton, Secretary Gale Interior; Clarke, Kathleen Director, Bureau of The NORTHERN TRIBE, CHEYENNE Management; Land Ott, Martin Mon federally recognized tribe; Indian Director, tana State Bureau of Land Action, Native non-profit a Montana Management; United States Bureau corporation, Plaintiffs-Appellants, Management, Land Defendants-Ap pellants, NORTON, Secretary Gale of the Interi

or; Clarke, Director, Kathleen Bureau Fidelity Exploration and Production of Land Management; Ott, Martin Company; Anadarko Petroleum Cor Director, Montana State Bureau of poration; Energy Devon Corporation; Land Management, Defendants-Ap LLC; Powder River Gas Pinnacle Gas pellees, Resources, Inc., Defendants-Interve

nors. Fidelity Exploration and Production Cheyenne Tribe, Northern a feder Company; Anadarko Petroleum Cor ally recognized tribe; Indian Native poration; Energy Corporation; Devon Action, a non-profit Montana corpo LLC; Powder River Gas Pinnacle Gas ration; Northern Plains Resource Resources, Inc., Defendants-Interve Council, Plaintiffs-Appellees, nors-Appellees.

Northern Council, Plains Resource Norton, Gale Secretary of Interior; Plaintiff-Appellant, Clarke, Director, Kathleen Bureau of Land Management; Ott, Martin Mon tana Director, State Bureau of Land Norton, Gale Secretary Interior; Management; United States Bureau Clarke, Kathleen Director, Bureau of Management, Land Defendants, Management; Land Ott, Martin Mon tana Director, State Bureau Land Management; United States Bureau Fidelity Exploration and Production of Land Management, Defendants-Ap Company, Defendants-Intervenors- pellees, Appellant.

Case Details

Case Name: Sarausad v. Porter

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 10, 2007

Citation: 503 F.3d 822

Docket Number: 05-35062

Court Abbreviation: 9th Cir.