                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 14 2010

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




                           FOR THE NINTH CIRCUIT



FERNANDO DOMINGUEZ,                              No. 09-16976

              Petitioner - Appellant,            D.C. No. 5:07-cv-02241-JF

  v.
                                                 MEMORANDUM *
TOM FELKER,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Northern District of California
                     Jeremy D. Fogel, District Judge, Presiding

                    Argued and Submitted September 15, 2010
                            San Francisco, California

Before: WALLACE and THOMAS, Circuit Judges, and MILLS, Senior
      District Judge.**

       Dominguez petitioned for a writ of habeas corpus following his conviction

in California state court for first-degree felony murder, rape, and aggravated

kidnaping. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we

        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
         The Honorable Richard Mills, Senior United States District Judge for the
Central District of Illinois, sitting by designation.
review the district court’s decision to deny a writ of habeas corpus de novo. Moor

v. Palmer, 603 F.3d 658, 660 (9th Cir. 2010). We affirm.

      Dominguez asserts that the note from his jury demonstrates to a certainty

that the jurors actively considered a theory of the case whereby Dominguez

kidnaped and raped the victim and then merely watched or walked away, and Jose

Martinez, his deceased accomplice, killed her. Based on the record before us, one

can only speculate as to what the jury was thinking when it sent the note. Perhaps

a juror briefly entertained the notion that Martinez was the killer before changing

his or her mind, or maybe some of the jurors were merely curious about the

elements of felony murder. Given the number of plausible explanations, the note

from the jury alone simply does not establish that the jurors believed Martinez,

rather than Dominguez, was the actual killer. To the extent that Dominguez’s

habeas claims are based on pure speculation, his claims fail. Cf. United States v.

Kim, 196 F.3d 1079, 1082–83 (9th Cir. 1999) (rejecting speculative arguments

premised on an ambiguous note from the jury).

      Even assuming that one or more members of Dominguez’s jury was

uncertain as to whether Dominguez, Martinez, or both strangled the victim,

Dominguez’s conviction for felony murder was neither contrary to, nor an

unreasonable application of, clearly established Supreme Court precedent. See 28


                                          2
U.S.C. § 2254(d)(1)–(2). Dominguez contends that his due process rights were

violated by the trial court’s failure to instruct the jury on certain elements of

California’s felony murder rule. Any instructional error, however, was harmless.

See United States v. Neder, 527 U.S. 1, 19–20 (1999). Even if Dominguez’s jury

determined that he kidnaped and brutally raped his victim and then stood idly by as

Martinez killed her, as a matter of California law this satisfies the “logical

connection” element of the state’s felony murder rule. See People v. Cavitt, 33

Cal. 4th 187, 196, 203 (2004). Similarly, even if the jury did not find that Martinez

intended to aid and abet Dominguez in the underlying rape, California’s felony

murder rule did not require the jury to do so. See People v. Dominguez, 39 Cal. 4th

1141, 1162 (2006), citing Cavitt, 33 Cal. 4th 187. Because we are bound by a state

court’s interpretation of its own laws, see Mullaney v. Wilbur, 421 U.S. 684, 691 &

n.11 (1975), Dominguez’s instructional-error claim does not persuade us.

      We also reject Dominguez’s argument that his due process rights were

violated under Bouie v. City of Columbia, 378 U.S. 347 (1964), by a retroactive

judicial alteration of the state’s felony murder rule. Even if the jury determined

that Dominguez kidnaped and brutally raped the victim while Martinez looked on

and that Dominguez then passively watched as Martinez strangled her, more than

thirty years earlier the California Supreme Court upheld a conviction for felony


                                            3
murder on almost identical facts. See People v. Whitehorn, 60 Cal. 2d 256, 260,

264 (1963). Dominguez’s felony-murder conviction was not “unexpected” or

“indefensible.” See Rogers v. Tennessee, 532 U.S. 451, 461 (2001).

      Dominguez next argues that his conviction for aggravated kidnaping violates

Bouie, because the state judiciary retroactively altered the asportation element of

that offense. Dominguez misapprehends California law, however, when he asserts

that aggravated kidnaping required asportation in excess of ninety feet at the time

of his crimes. In 1994, three years prior to Dominguez’s illegal conduct, the

California Supreme Court explicitly held that “no minimum number of feet” was

required to satisfy the asportation element of aggravated kidnaping. See People v.

Rayford, 9 Cal. 4th 1, 12 (1994). Thus, though he asported his victim less than

thirty feet, Dominguez had “fair warning” that this distance could satisfy the

asportation element of aggravated kidnaping. See Rogers, 532 U.S. at 462.

      Finally, we deny Dominguez’s request to expand the certificate of

appealability to consider his sufficiency of the evidence claim because this claim

fails to make a “substantial showing of the denial of a constitutional right.” 28

U.S.C. § 2253(c)(2).

      AFFIRMED.




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