                                                                             FILED
                           NOT FOR PUBLICATION                               APR 08 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT

 SAP KRAY,                                         No. 08-35711

             Petitioner - Appellant,               D.C. No. 3:06-cv-05521-RBL

 v.

 BELINDA STEWART, Superintendent of                MEMORANDUM *
 Stafford Creek Correctional Center; ROB
 MCKENNA, Attorney General of the State
 of Washington,

             Respondents - Appellees.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                        Argued and Submitted June 5, 2009
                               Seattle, Washington

Before: CANBY and N.R. SMITH, Circuit Judges, and PRO,** District Judge.

      Sap Kray appeals the district court’s denial of his habeas petition,

challenging his underlying state court conviction for first degree murder. We



      *
        This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
       The Honorable Philip M. Pro, United States District Judge for the District
of Nevada, sitting by designation.
affirm.

      A jury convicted Kray of first degree murder of a police officer who was

attempting, with other officers, to arrest Kray. Kray defended on the ground of

self-defense.

      Kray appealed his conviction, contending, among other things, that the

district court erred in instructing the jury that the defense of self-defense was not

available to an “aggressor.” The Washington Court of Appeals held that any error

in the instruction was harmless on the ground that Kray was not entitled to resist

the arrest because “(1) the police used force that, while deadly, was lawful and not

excessive under the circumstances, and (2) Kray created the need for police to use

deadly force.” State v. Kray, No. 24680-5-II, 114 Wash. App. 1052, 2002 WL

31732682, at *6, slip op. (Wash. Ct. App. Dec. 6, 2002).

      Kray contends that this harmless error ruling by the Washington Court of

Appeals introduced, and held to be satisfied, new elements of the crime against

which Kray had not had an opportunity to defend. Kray argues that the

Washington court thereby violated the Sixth Amendment as interpreted in

Apprendi v. New Jersey, 530 U.S. 466, 477 (2000), and Cole v. Arkansas, 333 U.S.

196, 202 (1948). We reject Kray’s contention.

      At Kray’s trial, the government was required to prove either that Kray did


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not act in self-defense or that Kray was the aggressor. The jury was instructed that

self-defense rendered a homicide justifiable if the killer reasonably believed that

the person killed intended to inflict death or great personal injury and that there

was imminent danger of such harm. The court also instructed the jury that self-

defense was not available as a defense if Kray was the aggressor and his acts

promoted the conflict. Finally, the court instructed that the use of deadly force by

police is justifiable “when necessarily used” to effect a felony arrest. “Necessary”

was defined to require, among other things, that “the amount of force used was

reasonable to effect the lawful purpose intended.” The jury was also instructed as

to what constitutes reasonable force in effecting an arrest. These matters were all

contested at trial.

        The Washington Court of Appeals did not violate Kray’s constitutional

rights when it ruled that any error in the “aggressor” self-defense instruction was

harmless because Kray was not entitled to a self-defense jury instruction. The

appellate court’s findings that the force the police used against Kray was not

excessive, and that Kray had created the need for such force, were litigated during

Kray’s trial and thus did not deprive him of any defense. At trial, Kray disputed

the reasonableness of the Tacoma Police Department’s decision to use a SWAT

team to arrest him. See State v. Westlund, 13 Wash. App. 460, 466 (Wash. Ct.


                                           3
App. 1975) (holding that an arrestee’s resistance of excessive force by a known

police officer, effecting a lawful arrest, is justified only if the arrestee was about to

be seriously injured). Kray’s lawyer argued in the closing statement that his

conduct at his wife’s place of work the night before his violent confrontation with

the police did not create the need for the use of force in his arrest. Kray’s trial

accordingly decided the disputed factual questions upon which the appellate court

relied in observing that Kray was not entitled to a self-defense instruction.

      The harmless error ruling of the Washington Court of Appeals did not

violate Apprendi, which requires the jury to find any facts (other than prior

convictions) that increase the maximum sentence that may be imposed on a

defendant. Apprendi, 530 U.S. at 490. Nor did the ruling violate the Sixth

Amendment, which does not apply to appellate proceedings. See Martinez v.

Court of Appeal of Cal., 528 U.S. 152, 160-61 (2000). The Washington Court of

Appeals did not affirm Kray’s conviction on a charge different from the ones of

which he was given notice, in violation of Cole, 333 U.S. at 201. Indeed, even if

the Washington Court of Appeals erred in its harmless error ruling, which we do

not hold, Kray would stand convicted on an instruction that was erroneous under

state law, which is not cognizable on federal habeas corpus review. See Gilmore v.

Taylor, 508 U.S. 333, 344 (1993).


                                            4
      The Washington Court of Appeals also did not violate Kray’s constitutional

right to confront witnesses when it upheld the trial court’s decision to exclude as

privileged statements made by police officers at counseling sessions and testimony

about the sessions themselves. See Delaware v. Van Arsdall, 475 U.S. 673, 684

(1986) (holding that a confrontation clause violation is subject to harmless error

analysis). Even if the exclusion of the privileged material were wrong, the error

would be harmless because Kray elicited the information in other ways. For

example, Kray was able to establish on cross-examination that the police officers’

memories of who fired the first shot were inconsistent with each other and with

their own prior statements. The jury learned that some of the officers had initially

said or thought that the police fired first, but then reversed themselves later. Kray

was also able on cross-examination to ask the officers why their recollections had

changed. Excluding the privileged material did not keep Kray from meaningfully

cross-examining the officers.

      We conclude, therefore, that Kray has failed to demonstrate that his state

court conviction “resulted in a decision that was 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). Federal relief by

habeas corpus is therefore precluded. Id.


                                            5
The judgment of the district court is

AFFIRMED.




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