                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            NOV 17 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ROBERT ALAN BROWN,                               No.   16-35741

              Petitioner-Appellant,              D.C. No. 2:15-CV-00224-SAB

 v.
                                                 MEMORANDUM*
JAMES KEY, Superintendent of Airway
Heights Correctional Center,

              Respondent-Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of Washington
                  Stanley Allen Bastian, District Judge, Presiding

                      Argued and Submitted October 3, 2017
                               Portland, Oregon

Before:      LEAVY, PAEZ, and BEA, Circuit Judges.

      Petitioner Robert Alan Brown appeals the district court’s judgment

dismissing his petition for writ of habeas corpus. We have jurisdiction under 28

U.S.C. §§ 1291 and 2253. We review a district court’s denial of a petition for writ


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
of habeas corpus de novo, see Smith v. Ryan, 823 F.3d 1270, 1278-79 (9th Cir.

2016), and we affirm.

       1. Background. Brown participated in a kidnapping that culminated in the

murder of the victim by Brown’s associates. The information charged Brown with

several crimes, two of which are relevant in this appeal: first degree kidnapping

and felony murder.

       The information expressly limited the first degree kidnapping charge by

specifying that Brown kidnapped the victim “with the intent to inflict bodily

harm,” thus omitting any other type of intent that could have supported a first

degree kidnapping conviction. The felony murder charge alleged that Brown

murdered the victim in the course of “first degree kidnapping.” The jury

instructions, however, stated that a kidnapping conviction could rest on a finding

of either intent to inflict bodily injury or intent to inflict extreme mental distress.

By contrast, neither the information nor the jury instructions specified any type of

intent for the felony murder charge. A jury convicted Brown of first degree

kidnapping and felony murder.

       On direct appeal, the Washington Court of Appeals reversed the kidnapping

conviction. The court determined that the kidnapping charge had deprived Brown

of his right to notice of the crime for which he could be convicted, because the jury


                                            2                                      16-35741
instructions included two different means of satisfying intent, while the charging

document contained only one of those means. The Court of Appeals rejected

Brown’s claim that the felony murder conviction was necessarily invalid as a

consequence. The Washington Supreme Court affirmed.

      Brown’s federal habeas petition raised the claim that his felony murder

conviction must be vacated because the underlying kidnapping conviction was

reversed. The district court denied Brown’s habeas petition, but issued a certificate

of appealability as to Brown’s challenge to his felony murder conviction.

      2. Validity of felony murder conviction. The district court did not err in

concluding that the state court’s decision affirming Brown’s felony murder

conviction does not conflict with clearly established Supreme Court law. Brown

contends that the lack of constitutionally adequate notice as to the sole predicate

felony conviction must also invalidate his felony murder conviction. To reach this

result, Brown analogizes from several Supreme Court decisions dealing with

disparate areas of Fifth Amendment, Sixth Amendment, and habeas jurisprudence.

None of these cases clearly announces Brown’s proposed rule.

      Federal courts may not grant habeas relief unless the state court’s

adjudication of a claim rested on an unreasonable determination of the facts in light

of the evidence presented, or “resulted in a decision that was contrary to, or


                                           3                                     16-35741
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).

Analogies from Supreme Court decisions that do not address the specific area of

law at issue are not sufficient. See Carey v. Musladin, 549 U.S. 70, 77 (2006).

“Circuit precedent cannot ‘refine or sharpen a general principle of Supreme Court

jurisprudence into a specific legal rule that [the Supreme] Court has not

announced.’” Lopez v. Smith, 135 S. Ct. 1, 4 (2015) (per curiam) (quoting

Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)).

      No legal rule clearly established by any Supreme Court determination

invalidates a felony murder conviction for the reason that the predicate felony

conviction has been overturned for lack of charging notice. Furthermore,

Washington courts have long held that the underlying elements of the predicate

felony are not essential elements of felony murder and do not have to be included

in the information. See State v. Craig, 514 P.2d 151, 154-55 (Wash. 1973); State

v. Whitfield, 224 P. 559, 561 (Wash. 1924). In accordance with Washington law,

both the charging document and the jury instructions that led to Brown’s felony

murder conviction referred to the underlying kidnapping without including a

particular intent. This manner of giving notice for felony murder violates no rule

of law clearly established by the Supreme Court.


                                          4                                    16-35741
AFFIRMED.




            5   16-35741
