Moore v. Borg

• Decision Date: 03 August 1990
• Docket Number: No. 89-16146,89-16146
• Citation: 911 F.2d 738
• Parties: Unpublished Disposition NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. Raymond MOORE, Petitioner-Appellant, v. Robert G. BORG, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 738

911 F.2d 738

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Raymond MOORE, Petitioner-Appellant, v. Robert G. BORG, Warden, Respondent-Appellee.

No. 89-16146.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 3, 1990. ^*

Decided Aug. 7, 1990.

Before WALLACE, CANBY and RYMER, Circuit Judges.

MEMORANDUM ^**

Raymond Moore, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2254 habeas petition. He contends that by admitting his prior felony conviction to impeach him at his trial for murder, the trial court deprived him of due process and thus denied him a fair trial. We have jurisdiction pursuant to 28 U.S.C. Sec. 2253 and review the denial de novo. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989). We affirm.

Violation of a state evidence rule does not constitute grounds for habeas corpus relief absent a due process violation. See Engel v. Isaac, 456 U.S. 107, 119 (1982); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985), cert. denied, 478 U.S. 1021 (1986). A due process violation occurs only when the state law error is so prejudicial that it renders the defendant's trial fundamentally unfair. Colley v. Sumner, 784 F.2d 984, 990 (9th Cir.), cert. denied, 479 U.S. 839 (1986); Hines v. Enomoto, 658 F.2d 667, 672 (9th Cir.1981). Unfair prejudice exists when there is a substantial possibility of wrongful conviction. See Cassasa v. Nelson, 452 F.2d 1083, 1084 (9th Cir.1971) (per curiam); accord Britton v. Rogers, 631 F.2d 572, 575-76 (5th Cir.1980) (for due process violation, must show gross and conspicuous prejudice), cert. denied, 451 U.S. 939 (1981).

Here, the parties agree that the trial court erred in not considering whether the prejudicial effect of Moore's prior felony conviction for voluntary manslaughter substantially outweighed its probative value before admitting the conviction to impeach Moore's testimony. ¹ Moore contends that the error deprived him of due process and a fair trial because his defense at trial was that although he admitted to shooting the victim, he was intoxicated, did not remember the incident, and did not intend to kill her. ²

We conclude that the error under state law was not of constitutional magnitude. First, the evidence at trial established a history of conflict, including fistfights and threats, between Moore and the victim, who was his wife's stepmother. Second, the evidence established that the day before the shooting, Moore's wife told friends that she had purchased a gun and that she and Moore intended to shoot the victim. Third, there was eyewitness testimony that Moore walked up to the victim, called her a "bitch," and then shot her in the head at pointblank range. Fourth, several eyewitnesses testified that after the shooting, Moore told them that they were not to say anything. These witnesses also testified that although Moore had been drinking, he did not appear drunk. Finally, the trial court instructed the jury that it could consider the prior conviction only to assess his credibility as a witness. Given these uncontroverted circumstances, we conclude that the state law error was not so prejudicial that it rendered Moore's trial fundamentally unfair.

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except...