Ferrizz v. Giurbino

• Decision Date: 23 December 2005
• Docket Number: No. 03-56137.,03-56137.
• Citation: 432 F.3d 990
• Parties: Anthony Thomas FERRIZZ, Petitioner-Appellant, v. G.J. GIURBINO, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 990

432 F.3d 990

Anthony Thomas FERRIZZ, Petitioner-Appellant, v. G.J. GIURBINO, Respondent-Appellee.

No. 03-56137.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted February 7, 2005.

Filed December 23, 2005.

Kenneth M. Stern, Woodland Hills, CA, for the petitioner-appellant.

Timothy M. Weiner, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California, Gary L. Taylor, District Judge, Presiding. D.C. No. CV-02-05837-GLT.

Before PREGERSON, CANBY, and BEEZER, Circuit Judges.

OPINION

CANBY, Circuit Judge.

Anthony Ferrizz appeals the district court's denial of his habeas corpus petition, brought pursuant to 28 U.S.C. § 2254. Ferrizz contends that his state convictions violate due process because the jury's guilty verdicts on two counts of the charges — burglary and grand theft of lost property — are factually inconsistent. We conclude that, in the circumstances of this case, the decision of the California Court of Appeal upholding both verdicts 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)(1). We therefore affirm the judgment of the district court.

I

The facts are uncontested. Ferrizz and Manual Escobedo worked in roofing. In March of 2000, Holly Cirivello, the victim, called them for a roof repair. When they arrived in the morning, she took them into her master bedroom to show them where water was leaking into her room from the roof. On the wall of the bedroom, Cirivello had hung two antique purses, one of which contained an expensive wedding ring. After pointing out the leaks, Cirivello led the two men out of her house. They told her that they would return later in the day to repair the roof. Cirivello then left the house, locking all the doors.

When Ferrizz and Escobedo returned, Escobedo primarily worked on the roof while Ferrizz assisted both on the ground and on the roof. For the most part, Ferrizz did not leave Escobedo's sight for more than a minute or two. At one point, however, Ferrizz was out of sight for slightly longer.

When Cirivello returned to her house that evening, Ferrizz and Escobedo were gone, having finished the repairs earlier that day. She noticed a muddy heel print next to her office sofa. (It had begun raining only after Cirivello left her house in the morning.) Approximately a week later, she also noticed that the window behind the sofa was unlocked, and she noticed dried leaves behind the sofa. She always kept this window locked.

Shortly thereafter, she discovered that her wedding ring was missing from the purse on the wall of her master bedroom. She also noticed two palm prints on the unlocked window. She had not had any visitors other than Ferrizz and Escobedo between the time she had placed her ring in the purse and the time she discovered it missing. At this point, Cirivello called the sheriff's department to report her ring missing.

Meanwhile, three days before Cirivello reported the ring missing, Ferrizz had gone to an antique mall in Santa Maria, California, to sell the wedding ring. He sold the ring to Judy Jildera, a jeweler, for $300.00, telling her that he had found the ring inside a wall of a demolished home.

Sheriff's officers subsequently called Ferrizz and asked him about the ring. He stated that he had found a diamond ring outside of Cirivello's master bedroom window. After the call, Ferrizz came to Cirivello's house and told Cirivello that he did not have the ring but would try to find it. Thereafter he made several attempts to repurchase the ring from Jildera, who was reluctant to sell it back to Ferrizz.¹ Ferrizz finally arranged a meeting with Jildera to repurchase the ring from her. Her husband notified the police of the meeting, however. At the meeting, Jildera told Ferrizz that they must wait for the police to arrive, to which Ferrizz responded "oh no, [t]his is my third strike."

II

The jury found Ferrizz guilty of four crimes: (1) burglary, CAL. PENAL CODE § 459; (2) grand theft of personal property, CAL. PENAL CODE § 487; (3) grand theft of lost property, CAL. PENAL CODE § 485; and (4) receiving stolen property, CAL. PENAL CODE § 496(a). The trial judge granted Ferrizz's motion for a new trial on count four, receiving stolen property,² but denied a new trial on the other counts.³

The trial judge sentenced Ferrizz to thirty-five years to life on count one (burglary).⁴ The trial judge consolidated counts two (grand theft), and three (grand theft of lost property) into a single grand theft conviction, because he concluded that, with regard to those counts, "only one crime[was] committed." On the consolidated counts, the judge sentenced Ferrizz to twenty-five years to life, and then stayed the imposition of that portion of the sentence. The greater sentence on count one remained in force.

The California Court of Appeal affirmed in an unpublished opinion. Ferrizz contended that the verdicts could not stand because they were factually inconsistent: the conviction on count three indicated that the jury was convinced that Ferrizz had found the ring and improperly kept it, while the conviction on count one indicated that the jury thought he had burglarized Cirivello's home to take the ring. The Court of Appeal held that inconsistent verdicts were allowed to stand, and affirmed the convictions and sentence. The Supreme Court of California denied review.

Ferrizz filed a petition for habeas corpus. The district court denied relief, but granted Ferrizz a certificate of appealability on the question whether "the state courts acted contrary to Federal law, as determined by the Supreme Court, or unreasonably applied the law, in denying Ferrizz's claim that his due process rights were violated because his guilty verdicts were logically inconsistent with one another."

III

We review de novo the district court's denial of a habeas petition. Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003). The Antiterrorism and Effective Death Penalty Act ("AEDPA") limits review, however. See id. We may not grant a habeas petition unless the state court's decision is "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).

IV

The Supreme Court has made it clear that inconsistent verdicts may stand when one of those verdicts is a conviction and the other an acquittal. See United States v. Powell, 469 U.S. 57, 65, 105 S.Ct. 471, 83 L.Ed.2d 461 (1984); Dunn v. United States, 284 U.S. 390, 393, 52 S.Ct. 189, 76 L.Ed. 356 (1932). The underlying rationale of these cases is that the acquittal on one count may be explained as an exercise of lenity by the jury that is not necessarily grounded in its view of the evidence. See Dunn, 284 U.S. at 393, 52 S.Ct. 189. In adhering to this rule in Powell, however, the Court noted:

Nothing in this opinion is intended to decide the proper resolution of a situation where a defendant is convicted of two crimes, where a guilty verdict on one count logically excludes a finding of guilt on the other.

Powell, 469 U.S. at 69 n. 8, 105 S.Ct. 471. The government contends that this footnote establishes that the question of the effect of inconsistent guilty verdicts is an open one in the Supreme Court, and therefore there can be no "clearly established Federal law, as determined by the Supreme Court" on this issue to permit habeas relief under § 2254(d)(1).⁵

The Powell footnote, however, does not state that the question is an open one; it merely states that nothing in the Powell opinion decides the issue. The most that can be said of the footnote is that it makes clear that Ferrizz cannot rely on Powell as the Supreme Court precedent that the state court's decision contradicted or unreasonably applied. Ferrizz's habeas petition must be supported by some other Supreme Court precedent if it is to succeed.

Ferrizz contends that the state court's decision is contrary to Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct. 1444, 20 L.Ed.2d 491 (1968). He concedes that neither case directly involves inconsistent guilty verdicts, but he asserts that each supports a requirement of rationality in the jury verdicts. Apprendi requires a jury to determine facts (other than the fact of a prior conviction) that increase a sentence beyond an otherwise-applicable statutory maximum. 530 U.S. at 490, 120 S.Ct. 2348. Duncan guarantees a jury trial for crimes punishable by terms of imprisonment greater than that accorded petty offenses. 391 U.S. at 161-62, 88 S.Ct. 1444. Ferrizz draws from these cases a due process requirement of a rational jury determination, which is violated by inconsistent guilty verdicts.

There is often a question whether a particular application of Supreme Court precedent sought by a habeas petitioner is such an extension of that precedent that the new application cannot be regarded as clearly established federal law. "[T]he difference between applying a rule and extending it is not always clear." Yarborough v. Alvarado, 541 U.S. 652, 666, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). We do know that "it is not necessary for the petitioner to cite factually identical Supreme Court precedent." Matteo v. Superintendent, SCI Albion, 171 F.3d 877, 888 (3d Cir.1999). The difficulty lies in establishing the proper level of generality at which to assess the rule established by the Supreme Court decision in issue, and many courts have wrestled with that question. See, e.g., id.; Quinn v. Haynes, 234 F.3d 837, 844-45 (4th Cir.2000). "If [the Supreme] Court has not broken sufficient legal ground to establish an asked-for constitutional principle, the lower federal courts cannot themselves establish such a principle with clarity...