                                                                           FILED
                           NOT FOR PUBLICATION                              SEP 23 2010

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




                            FOR THE NINTH CIRCUIT



THOMAS JOHN SMITHSON,                            No. 08-15273

              Petitioner - Appellant,            D.C. No. CV-01-01373-
                                                 GEB/DAD
  v.

DARRELL G. ADAMS, Warden;                        MEMORANDUM *
JEANNE S. WOODFORD; ATTORNEY
GENERAL OF THE STATE OF
CALIFORNIA,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                             Submitted July 16, 2010 **
                             San Francisco, California

Before: HUG and M. SMITH, Circuit Judges, and TODD, Senior District Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable James Dale Todd, Senior United States District Judge
for the Western District of Tennessee, sitting by designation.
      Thomas Smithson (“Petitioner”), a California state prisoner, appeals the

district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition challenging

his life sentence for first degree felony murder, attempted robbery, and being a

convicted felon in possession of a firearm. We review the district court’s denial of

his habeas petition de novo, and look to the last reasoned state court decision as the

basis for the state court judgment. Cook v. Schriro, 538 F.3d 1000, 1015 (9th Cir.

2008). Because Petitioner filed his habeas petition after April 24, 1996, the

Antiterrorism and Effective Death Penalty Act (“AEDPA”) applies. Under

AEDPA, we may only grant a habeas petition 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 “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). We affirm.

I.    Evidence of Prior Conviction

      Petitioner contends that he was denied due process of law when the trial

court denied his motion to sanitize the admission of his prior burglary conviction.

The evidence was accompanied by a limiting instruction to the jury and was

admitted to prove the prior felony conviction element of his felon in possession of

a firearm charge. Due process is not violated when evidence of a prior felony

                                          2
conviction is admitted to prove a necessary element of a crime and the jury

receives a limiting instruction “that it should not consider the prior conviction as

any evidence of the defendant’s guilt on the charge on which he was being tried.”

Spencer v. Texas, 385 U.S. 554, 558 (1967). Juries are presumed to follow jury

instructions. See id. at 561; Hovey v. Ayers, 458 F.3d 892, 913 (9th Cir. 2006)

(“We presume that juries follow their instructions.”).

      Here, the California Court of Appeal held that Petitioner’s due process rights

were not violated by the admission of the evidence because the prior felony

conviction was required by section 28(f) of the California Constitution and the jury

received a limiting instruction. We hold that the California Court of Appeal’s

decision denying Petitioner’s motion to sanitize was not contrary to, or an

unreasonable application of clearly established Supreme Court law. See Spencer,

385 U.S. at 558.

II.   Ineffective Assistance of Counsel

      Petitioner argues that trial counsel’s failure to move to sever the charge of

felon in possession of a firearm from the rest of the charges unduly prejudiced him

by allowing the jury to hear evidence of his prior felony burglary conviction. The

Sixth Amendment requires effective assistance of counsel. Strickland v.



                                           3
Washington, 466 U.S. 668, 684-85 (1984). To establish ineffective assistance of

counsel, Petitioner must demonstrate that his counsel’s performance was both

objectively unreasonable and prejudicial to his defense. See id. at 687-88.

       Here, the California Court of Appeal held that Petitioner was unable to

establish prejudice because (1) the jury received a limiting instruction, (2) the prior

felony evidence was too dissimilar from the other charges to ignite prejudicial

feelings, and (3) the evidence on the other charges was strong enough to support

conviction regardless. We hold that the California Court of Appeal’s decision

denying Petitioner’s ineffective assistance of counsel claim was not contrary to, or

an unreasonable application of, clearly established Supreme Court law. See id. at

697.

III.   Sufficiency of Evidence

       Petitioner contends that the evidence presented against him was insufficient

to support his first degree murder and attempted robbery convictions and the

robbery special circumstance finding. For sufficiency of evidence claims we

consider “whether, after viewing the evidence in the light most favorable to the

prosecution, any rational trier of fact could have found the essential elements of the

crime beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979).



                                           4
“[A] federal habeas corpus court faced with a record of historical facts that

supports conflicting inferences must presume–even if it does not affirmatively

appear in the record–that the trier of fact resolved any such conflicts in favor of the

prosecution.” Id. at 326. “The federal habeas scheme leaves primary

responsibility with the state courts for these judgments, and authorizes federal-

court intervention only when a state-court decision is objectively unreasonable.”

Woodford v. Visciotti, 537 U.S. 19, 27 (2002).

      Attempted robbery under Cal. Penal Code § 211 requires that the defendant

harbor the specific intent to commit the crime and commit a direct act towards its

commission.

      Here, substantial evidence supported Petitioner’s attempted robbery

conviction. In fact, the evidence suggested that the robbery was completed. After

arriving at the Spence home and immediately before the shooting, the victim had at

least $850 in cash on his person, which he showed to others and in Petitioner’s

presence. However, when emergency personnel arrived at the scene, there was no

money in the victim’s possession. While at the Spence house, Petitioner kept the

victim in his sight and coaxed two other occupants to leave the house with

inconsistent justifications. He previously offered them $50 if they would return

and give him a ride in thirty minutes, yet had never offered such a large sum for a

                                           5
ride. Evidence indicated that Petitioner shot the victim in the neck from close

range. Petitioner’s statements after he was detained indicate that the shooting was

accidental but that it was in furtherance of the robbery. The California Court of

Appeal’s decision affirming Petitioner’s attempted robbery conviction and robbery

special circumstance conviction was not contrary to, or an objectively

unreasonable application of, federal law. See Jackson, 443 U.S. at 319; Woodford,

537 U.S. at 25.

      California Penal code § 189 mandates that “[a]ll murder . . . which is

committed in the perpetration of, or attempt to perpetrate . . . robbery . . . is murder

of the first degree.” The California Court of Appeal’s decision that sufficient

evidence existed to support the attempted robbery, which supported Petitioner’s

felony murder conviction was not contrary to, or an unreasonable application of,

federal law. See Jackson, 443 U.S. at 319.

      AFFIRMED.




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