                                                                          FILED
                           NOT FOR PUBLICATION                             FEB 27 2012

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




                           FOR THE NINTH CIRCUIT



DANIEL KRISTOPHER LARSON,                       No. 10-35617

              Petitioner-Appellant,             D.C. No. 2:09-cv-01453-TSZ

  v.
                                                MEMORANDUM *
PATRICK GLEBE,

              Respondent-Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                    Thomas S. Zilly, District Judge, Presiding

                    Argued and Submitted October 14, 2011**
                              Seattle, Washington

Before: BEEZER and PAEZ, Circuit Judges, and COLLINS, District Judge.**




       Daniel Larson brings this habeas petition pursuant to 28 U.S.C. § 2254 to

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **    The Honorable Raner C. Collins, United States District Judge for the
District of Arizona, sitting by designation.



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challenge his convictions for both first and second degree murder for the death of

Anastasia King. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253. We

review the district court’s decision to deny the petition de novo. Lambert v. Blodgett,

393 F.3d 943, 964 (9th Cir. 2004).

      The district court erred in concluding that Larson was not “in custody” under

his conviction for second degree murder. A petitioner is “in custody” for the purposes

of Section 2254 if “he is subject to a significant restraint upon his liberty ‘not shared

by the public generally.’” Dow v. Circuit Court of the First Circuit, 995 F.2d 922, 923

(9th Cir. 1993) (quoting Jones v. Cunningham, 371 U.S. 236, 240 (1963)). Here,

Larson is “in custody” on his first conviction because the possibility of a double

jeopardy violation flows from it and constitutes a significant restraint on his liberty.

      The deferential standard of review set out in the Anti-Terrorism and Effective

Death Penalty Act of 1996 (AEDPA) applies to this case because the Washington

Court of Appeals ruled on the merits of Larson’s claims. See Barker v. Fleming, 423

F.3d 1085, 1092 (9th Cir. 2005). Here, the Washington Court of Appeals considered

Larson’s double jeopardy by multiple convictions claim and denied relief summarily

by reference to its earlier denial of his multiple prosecution claim. The court’s

decision is a decision on the merits for AEDPA purposes. See Early v. Packer, 537

U.S. 3, 8 (2002) (per curiam) (ruling on the merits without citing to federal



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precedent); Harrington v. Richter, 131 S.Ct. 770, 784-85 (2011) (ruling on the merits

without discussing claim at all). Therefore, the AEDPA standard of review applies.

      AEDPA provides that relief can be granted on claims denied on the merits only

if the state court's adjudication was (1) contrary to, or involved an unreasonable

application of, clearly established federal law, or (2) based on an unreasonable

determination of the facts. 28 U.S.C. § 2254(d). The Washington Court of Appeals

conclusion that Larson waived his double jeopardy rights was reasonable because the

court could conclude that the “non-compliance” provision in his plea agreement was

the equivalent of a waiver. See Ricketts v. Adamson, 483 U.S. 1 (1987); Wainwright

v. Witt, 469 U.S. 412, 426 (1985). In addition, there is no clearly established federal

rule that a trial court confronted with a reinstatement of charges after waiver of

multiple prosecutions must vacate the earlier plea.

      Accordingly, we affirm the denial of habeas relief.

      AFFIRMED.




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