Willie Schoby, Jr. v. Anthony Hedgpeth

MEMORANDUM *** Petitioner Willie Schoby Jr. appeals the district court’s denial of his petition for a writ of habeas corpus. A jury convicted Mr. Schoby of false imprisonment, assault and two counts of rape. The jury also found that Mr. Schoby had personally used a dangerous or deadly weapon during the course of one of the rapes in violation of California Penal Code § 667.61(e)(4) (the “One Strike” law). 1 The district court issued a certificate of appealability on the issue of whether Mr. Schoby was denied due process by defects in the jury instructions and verdict form that may have caused the jury to misunderstand the findings necessary for its decision that Mr. Schoby had used a deadly or dangerous weapon. The facts need not be repeated here because they are already known by the parties. We have jurisdiction under 28 U.S.C. § 2253, and we affirm. Mr. Schoby claims that the California Supreme Court’s decision was unreasonable in light of Estelle v. McGuire, 502 U.S. 62, 72, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). However, the California Supreme Court could have concluded that even though the jury did not believe that Mr. Schoby used a bat and a crowbar, the jury believed Mr. Schoby used a bat during the rape. See People v. Schoby, No. A107821/A108061, 2006 WL 952648, at *3 (Cal.Ct. App. Apr.13, 2006). Alternatively, the court could have concluded that the jury considered a belt to be a deadly or dangerous weapon. See People v. Nealis, 283 Cal.Rptr. 376, 378 n. 2 (Cal.App. Dep’t Super.Ct.1991) (“deadly weapon” has been defined to include objects such as a pillow, a fingernail file, and a rock). We conclude that Mr. Schoby has failed to show that there was “no reasonable basis for the state court to deny relief.” Harrington v. Richter, - U.S. -, -, 131 S.Ct. 770, 784, 178 L.Ed.2d 624 (2011). Therefore, *708 the California Supreme Court’s decision was not “contrary to, or ... an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d). AFFIRMED. Footnotes [***] This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. [1] In 2006, California Penal Code § 667.61(e)(4) was replaced by the almost-identical California Penal Code § 667.61(e)(3).