                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 18 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


STEPHEN BENNETT,                                  No. 13-56117

              Petitioner - Appellant,             D.C. No. 8:12-cv-00644-GAF-
                                                  PLA
  v.

RON BARNES, Warden,                               MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Gary A. Feess, District Judge, Presiding

                       Argued and Submitted January 9, 2015
                               Pasadena, California

Before: WARDLAW, W. FLETCHER, and OWENS, Circuit Judges.

       Stephen Bennett appeals the district court’s denial of his petition for habeas

corpus under 28 U.S.C. § 2254. He was convicted in state court of felony murder

with special circumstances, Cal. Penal Code § 190.2(d), and sentenced to life

without the possibility of parole. On the issue for which the district court granted a



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
certificate of appealability, Bennett argues that the evidence of the element of

“reckless indifference to human life” under § 190.2(d) was insufficient to support a

conviction under Jackson v. Virginia, 443 U.S. 307, 324 (1979), and that the

California Court of Appeal unreasonably applied Jackson in holding otherwise.

We review the district court’s decision de novo, and we affirm.

      According to the California Supreme Court, the interpretation of

§ 190.2(d)’s “reckless indifference to human life” element derives from Tison v.

Arizona, 481 U.S. 137 (1987). People v. Estrada, 904 P.2d 1197, 1201 (Cal.

1995). “Tison . . . instructs that the culpable mental state of ‘reckless indifference

to life’ is one in which the defendant ‘knowingly engag[es] in criminal activities

known to carry a grave risk of death.’” Id. at 1202 (latter alteration in original)

(quoting Tison, 481 U.S. at 157).

      The California Court of Appeal did not unreasonably determine that a

rational jury could have concluded that Bennett was subjectively aware of a grave

risk of death. There is evidence showing, or at least supporting an inference, that

Bennett knew that his accomplices planned to commit an armed robbery and that

he failed to render aid to the injured victim. The state court did not unreasonably

determine that the jury could have interpreted the secretly recorded conversation

between Bennett and one of the shooters to mean that Bennett was aware that the


                                           2                                     13-56117
shooters would be armed. And the jury could have inferred that Bennett heard,

along with several witnesses, the fatal shots, knew that the victim was injured, and

drove the shooters home rather than rendering aid to the victim.

      We construe Bennett’s briefing of an uncertified issue as a motion to expand

the certificate of appealability, Ninth Cir. R. 22-1(e), and deny it.

      AFFIRMED.




                                            3                                 13-56117
