                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 26 2011

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




                            FOR THE NINTH CIRCUIT



CESAR SARAUSAD,                                  No. 10-35226

              Petitioner - Appellant,            D.C. No. 2:02-cv-02547-JCC

  v.
                                                 MEMORANDUM *
DOUG WADDINGTON,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                        Argued and Submitted June 21, 2011
                               Pasadena, California

Before: REINHARDT, W. FLETCHER, and BYBEE, Circuit Judges.

       On remand from the Supreme Court, Sarausad renewed the two arguments in

his habeas petition that had not yet been decided. The district court rejected both

arguments. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Sarausad argues that Washington’s accomplice liability statute failed to give

him adequate notice that he could be found guilty of murder for aiding in the

commission of a drive-by shooting, in violation of the Fourteenth Amendment’s

due process clause. It is well-settled that a person cannot be held “criminally

responsible for conduct which he could not reasonably understand to be

proscribed.” United States v. Harriss, 347 U.S. 612, 617 (1954). In challenging

the statute for vagueness, Sarausad has the burden to show that it was

unconstitutionally vague as applied to him. United States v. Davis, 36 F.3d 1424,

1434 (9th Cir. 1994). The Supreme Court’s decision in this case forecloses

Sarausad’s argument. Under the Supreme Court’s reading of Washington’s

accomplice liability statute and the paralleling jury instruction, the jury found that

Sarausad knowingly facilitated a murder, not some other crime. Waddington v.

Sarausad, 555 U.S. 179, 191-92 (2009). The accomplice statute, as interpreted by

the Supreme Court, gave fair warning that Sarausad could be convicted of murder

and attempted murder if he knowingly facilitated a murder. See Rev. Code Wash.

§ 9A.08.020(3)(a).

      Sarausad also argues that the Fourteenth Amendment’s equal protection

clause was violated because he was convicted of murder with less evidence of

intent than was required to convict the principal. Because the Washington courts


                                           2
did not rule on this argument, we do not review it under the deferential AEDPA

standard. Luna v. Cambra, 306 F.3d 954, 960-61 (9th Cir.), amended by 311 F.3d

928 (9th Cir. 2002). However, Sarausad’s argument is foreclosed by Teague v.

Lane, 489 U.S. 288 (1989). Under Teague, we may not announce a new rule of

law on habeas review, id. at 310, and Sarausad points to no extant caselaw holding

that such a conviction violates the equal protection clause.

      AFFIRMED.




                                          3
