                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                             JUN 08 2011

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

CHRISTOPHER PETER KAZAS,                         No. 10-15420

       Petitioner - Appellant,                   D.C. No. 5:04-cv-04280-RMW

 v.
                                                 MEMORANDUM*
J. WOODFORD, Director of California
Department of Corrections,

       Respondent - Appellee.


                     Appeal from the United States District Court
                       for the Northern District of California
                     Ronald M. Whyte, District Judge, Presiding

                       Argued and Submitted February 15, 2011
                              San Francisco, California

      Before: SCHROEDER, THOMAS, Circuit Judges, and BENNETT, District
                              Judge.**




         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
         **
              The Honorable Mark W. Bennett, District Judge for the Northern
District of Iowa, sitting by designation.
      Defendant Christopher Peter Kazas appeals the denial of his petition for writ

of habeas corpus, pursuant to 28 U.S.C. § 2254, by the United States District Court

for the Northern District of California. On April 22, 2001, while fleeing from the

California Highway Patrol, Kazas ran a red light and collided with a van. As a

result of the collision, the driver of the van was killed and a passenger was injured.

      Kazas was tried in the Superior Court of California, Sonoma County, on

charges of second degree murder and other charges arising out of the incident. At

trial, the prosecution relied on both implied malice and felony murder to support

the charge of second degree murder. The felony murder charge was based on

violation of California Vehicle Code § 2800.2, which provides:

             (a) If a person flees or attempts to elude a pursuing peace
             officer in violation of Section 2800.1 and the pursued
             vehicle is driven in a willful or wanton disregard for the
             safety of persons or property, the person driving the
             vehicle, upon conviction, shall be punished by
             imprisonment in the state prison, or by confinement in
             the county jail for not less than six months nor more than
             one year . . . .

             (b) For purposes of this section, a willful or wanton
             disregard for the safety of persons or property includes,
             but is not limited to, driving while fleeing or attempting
             to elude a pursuing peace officer during which time
             either three or more violations that are assigned a traffic
             violation point count under Section 12810 occur, or
             damage to property occurs.



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The jury found Kazas guilty of second degree murder. Jury members were not

instructed to specify whether they relied on the implied malice theory or the felony

murder theory, and they did not do so.

      After exhausting his state court remedies, Kazas filed a petition for writ of

habeas corpus pursuant to 28 U.S.C. § 2254 in federal court. Kazas challenged his

second degree murder conviction based on the California Supreme Court’s

decision in People v. Howard, 34 Cal. 4th 1129 (2005). Howard, decided long

after Kazas’s conviction was final, held that violation of § 2800.2 was not an

inherently dangerous felony and, therefore, could not serve as a basis for a felony

murder conviction. Id. at 1138-39.

      The district court denied Kazas’s petition, determining that the summary

denial of Kazas’s state petition for writ of habeas corpus by the California Supreme

Court constituted a decision on the merits that Howard was a change in the law

that did not apply retroactively. The district court then relied on Wainwright v.

Stone, 414 U.S. 21, 23-24 (1973), which held that a state court’s decision not to

apply a change in state law retroactively does not violate federal constitutional

rights. The district court decided, therefore, that the state court’s denial of Kazas’s

petition was neither “contrary to, [n]or involved an unreasonable application of,

clearly established Federal law.” 28 U.S.C. § 2254(d). The district court


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concluded, however, that it would be appropriate to issue a certificate of

appealability because the California Supreme Court’s denial was a summary

denial, lacking explanation of its reasoning.

      Kazas appeals the denial of his petition for writ of habeas corpus, arguing

that Howard was merely a clarification of the law and that it was unreasonable for

the California Supreme Court to fail to apply a new interpretation of a state

criminal statute retroactively, based on Fiore v. White, 531 U.S. 225, 226, 228-229

(2001) (per curiam) (failure to apply a clarification retroactively to a prior

conviction under the same law violates the due process right to have all elements of

a crime proved beyond a reasonable doubt), and Bunkley v. Florida, 538 U.S. 835,

840 (2003) (per curiam) (remand to Florida state court to determine whether new

interpretation of “common pocketknife,” which would have excluded Bunkley’s

knife, applied at the time of Bunkley’s conviction). Kazas further asserts that it

would be proper to certify the matter to the California Supreme Court to determine

whether the decision in Howard was a change in the law or merely a clarification.

The Respondent argues that the summary denial of Kazas’s petition for writ of

habeas corpus constituted a decision by the California Supreme Court that Howard

was a change in the law, not merely a clarification, and that, pursuant to

Wainwright, it was not unreasonable for the California Supreme Court to decide


                                           4
that Howard did not apply retroactively. We affirm the district court’s denial of

Kazas’s petition.

      We review de novo the district’s court’s denial of a petition for a writ of

habeas corpus pursuant to § 2254. Musladin v. Lamarque, 555 F.3d 830, 835 (9th

Cir. 2009). Where a state court’s decision is unaccompanied by an explanation, the

habeas petitioner’s burden still must be met by showing that there was no

reasonable basis for the state court to deny relief. Harrington v. Richter, ___ U.S.

___, ___, 131 S. Ct. 770, 784-85 (2011).

      We will grant a § 2254 petition only if the state court decision “was contrary

to, or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or “was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d); Richter, ___ U.S. at ___, 131 S. Ct.

at 785. “Under § 2254(d), a habeas court must determine what arguments or

theories supported, or, as here, could have supported, the state court’s decision;

and then it must ask whether it is possible fairminded jurists could disagree that

those arguments or theories are inconsistent with the holding in a prior decision of

[the United States Supreme Court].” Richter, ___ U.S. at ___, 131 S. Ct. at 786.




                                           5
      On November 15, 2006, the Supreme Court of California issued its opinion

in this matter, stating: “Petition for writ of habeas corpus denied.” On its face, this

opinion provides no explanation for the basis of the court’s decision. However, on

August 8, 2006, the Court Administrator and Clerk of the Supreme Court of

California wrote a letter to the parties requesting, on behalf of the court, that they

each specifically address the following questions: “1) What effect does People v.

Howard . . . have on petitioner’s claims?; 2) Is Howard retroactive?; 3) If there was

error based on the decision in Howard, is the error harmless beyond a reasonable

doubt?; 4) If petitioner sought review in this court while Howard was pending, do

any procedural bars still apply?”

      If the state court’s summary denial would have been reasonable, based on

resolution of any one of the four questions, Kazas will not have met his burden to

show that there was no reasonable basis for the state court to deny relief. See

Richter, ___ U.S. at ___, 131 S. Ct. at 784-85.

      “[A] state court’s interpretation of state law, including one announced on

direct appeal of the challenged conviction, binds a federal court sitting in habeas

corpus.” Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). Kazas

acknowledges, based on Wainwright, that if Howard is interpreted as a change in

the law, the California Supreme Court’s decision not to apply Howard retroactively


                                           6
does not violate his federal constitutional rights to due process or a fair trial. The

Howard decision does not explicitly state that it is a change in the law, nor does it

explicitly state that it is merely a clarification of the law. However, Kazas cannot

show that there is no possibility that fairminded jurists could disagree that a failure

to apply Howard retroactively violates federal law. See Richter, ___ U.S. at ___,

131 S. Ct. at 786 (“[The applicable standard] preserves authority to issue the writ

in cases where there is no possibility fairminded jurists could disagree that the state

court’s decision conflicts with this Court’s precedents. It goes no farther.”). In

other words, to obtain relief, Kazas must show that all fairminded jurists would

agree that the state court’s failure to apply Howard retroactively violated federal

law. He has not done so. We decline Kazas’s invitation to certify a question to the

California Supreme Court.

      The district court properly denied Kazas’s petition for a writ of habeas

corpus.

      AFFIRMED.




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