                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 22 2014

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



                            FOR THE NINTH CIRCUIT


DENTON R. WHITE,                                 No. 12-15033

              Petitioner - Appellant,            D.C. No. 2:09-cv-00400-KJD-
                                                 VCF
  v.

DWIGHT NEVEN, Warden; ATTORNEY                   MEMORANDUM*
GENERAL OF THE STATE OF
NEVADA,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Kent J. Dawson, District Judge, Presiding

                     Argued and Submitted September 8, 2014
                            San Francisco, California

Before: SCHROEDER, OWENS, and FRIEDLAND, Circuit Judges.

       Petitioner Denton White appeals the district court’s denial of his habeas

petition. He was convicted in Nevada state court of resisting a public officer,

discharging a firearm into a structure, attempted robbery with use of a deadly

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
weapon, first-degree kidnapping with use of a deadly weapon, assault with a

deadly weapon, coercion with use of a deadly weapon, and battery with use of a

deadly weapon. He was sentenced to life with the possibility of parole. White’s

request for a certificate of appealability from this Court was granted on the

following issues: first, whether there was sufficient evidence to sustain White’s

conviction for first-degree kidnapping; second, whether jury instruction no. 12

regarding first-degree kidnapping violated White’s constitutional rights; third,

whether White’s trial counsel was ineffective in failing to object to that instruction;

and fourth, whether cumulative error rendered White’s trial fundamentally unfair.

      We review the decision of the Nevada Supreme Court under the deferential

standards of the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254.

      The Nevada Supreme Court found the evidence was sufficient to support the

kidnapping conviction, and its conclusion was not an unreasonable application of

federal law. See id. at § 2254(d)(1).

      White contends that jury instruction no. 12 was not in accord with the

Nevada Supreme Court’s later decision in Mendoza v. State, 130 P.3d 176 (Nev.

2006), and that the jury was therefore not required to find all of the elements of the

crime in violation of federal due process. See In re Winship, 397 U.S. 358, 364

(1970). The Nevada Supreme Court held, however, that the instruction given was


                                           2
in accord with Mendoza. White nevertheless contends that, contrary to Mendoza,

the instruction permitted the jury to find kidnapping solely on the basis of restraint,

and in the absence of any increased risk of harm.

      Even assuming the Nevada Supreme Court was mistaken in holding that the

instruction satisfied Mendoza, and that such a mistake amounted to a violation of

federal law, any error was harmless. The record reflects that White moved the

victim from one location to another in the apartment at gunpoint. The prosecutor,

in closing argument, stressed that such conduct resulted in an increased risk of

harm. On the basis of this record, the jury would have had to have found the

requisite elements of kidnapping under Mendoza, including increased risk of harm.

      We cannot hold that counsel was ineffective in failing to object to the

instruction. Its language was supported by existing Nevada authority. See

Hutchins v. State, 867 P.2d 1136, 1140 (Nev. 1994). The Nevada Supreme Court

later clarified the law in Mendoza.

      Because White has failed to demonstrate more than one error, there can be

no cumulative error to support granting the writ.

      Petitioner’s unopposed motion to take judicial notice is GRANTED.

      The judgment of the district court is AFFIRMED.




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