                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                                JUL 11 2014

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

LEVI JAMES JACKSON,                               No. 10-15067

              Petitioner - Appellant,             D.C. No. 4:01-cv-00545-RCC

  v.
                                                  MEMORANDUM*
CHARLES L. RYAN,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Arizona
                  Raner C. Collins, Chief District Judge, Presiding

                      Argued and Submitted September 9, 2013
                             San Francisco, California

Before: THOMAS, GRABER, and BERZON, Circuit Judges.

       Arizona state prisoner Levi Jackson appeals the district court’s denial of his

petition for a writ of habeas corpus challenging his conviction for murder,

kidnapping, and armed robbery. We affirm. Because the parties are familiar with

the history of the case, we need not recount it in detail.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Jackson asserts that the state trial court’s felony murder instruction violated

his due process rights by relieving the prosecution of its burden to prove each

element of the offense and, therefore, his counsel violated his Sixth Amendment

right to effective assistance of counsel by failing to object to the jury instruction.

Under Strickland v. Washington, 466 U.S. 668 (1984), Jackson must show that

counsel’s performance was constitutionally deficient and that, but for counsel’s

errors, there is a reasonable probability that the result of the proceeding would have

been different. Id. at 687, 694. We need not determine whether Jackson has

shown that his counsel’s performance was constitutionally deficient. Whether it

was or not, he has not established prejudice within the meaning of Strickland,

because he has not shown a reasonable probability that the result would have been

different. See Wiggins v. Smith, 539 U.S. 510, 534 (2003).

      Arizona law required that, to convict Jackson of first degree murder under a

theory of felony murder, the State had to prove that Jackson caused the death of the

victim “in the course of and in furtherance of” the predicate felony. Ariz. Rev.

Stat. § 13-1105(A)(2) (1978). The Arizona Supreme Court has construed the “in

furtherance of” element to mean that a defendant must have killed the victim “to

facilitate the accomplishment of” the felony. State v. Miles, 918 P.2d 1028, 1033

(Ariz. 1996); State v. Arias, 641 P.2d 1285, 1287 (Ariz. 1982). But while the state


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trial court initially recited the statutory “in furtherance” language of Arizona’s

felony murder statute, it went further. It added a different and contradictory

admonition—that “[i]t is enough if the felony and the killing were part of the same

series of events.”

      The State alleged that Jackson, Kevin Miles, and Ray Allen Hernandez

approached Patricia Baeuerlen as she stopped her car at an intersection in Tucson,

Arizona. One of the men pointed a gun at her and ordered her to move over.

Jackson, Miles, and Hernandez then got into the vehicle and drove to a desert area

on the southeast side of Tucson. Baeuerlen was ordered out of the car, and several

minutes later she was fatally shot by a single gunshot wound to the heart. Her

body was found about seven hours later. The next day, after a high speed chase,

Miles was arrested driving Baeuerlen’s stolen car. In addition to recovering

Baeuerlen’s car, they also found her ATM card, credit card, and personal effects in

Miles’ possession. Jackson’s thumbprint was found on the car’s rearview mirror,

on a cassette tape in the car, and on a plastic bag in the trunk. Hernandez’s mother

found a gun hidden in a hole in the wall of his bedroom closet and turned it over to

police.

      At trial, the state produced video from a bank ATM camera showing Jackson

using Baeuerlen’s ATM card to withdraw money the same day she was killed. The


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State introduced testimony that Jackson had given Baeuerlen’s ring to his girl

friend. A number of witnesses testified that they saw Jackson with Miles and

Hernandez at various times. A number of witnesses saw Jackson in Baeuerlen’s

car after her death. A witness saw Miles, Hernandez, and Jackson walking to the

corner where the carjacking took place. A friend of Baeuerlen’s, who was driving

just in front of her, saw three or four boys roughly matching the descriptions of

Jackson, Miles, and Hernandez standing at the corner where the carjacking took

place. Police officers confirmed that Baeuerlen was shot in the chest by a .45

caliber semi-automatic handgun. The State presented testimony that persons

matching the description of Miles and Hernandez had stolen a .45 caliber handgun

that matched the description of the murder weapon, along with a holster that was

subsequently found at the murder scene.

      Jackson did not testify at trial, but the state introduced a number of his

statements through others. The stories varied:

      •      He told one witness that he had “killed a lady.” Jackson said that he
             and his friends car-jacked a woman’s car, drove it some place, and
             told her to get out. He then took off her shoes. His friends told him
             that he had to kill her. He looked at his friends and then shot her in
             the chest with a .45 caliber handgun.

      •      While driving Baeuerlen’s car shortly after the murder, he told
             another witness that he had gotten the car “from some old dead lady.”



                                          -4-
      •      While driving Baeuerlen’s car with another witness, Jackson first said
             that the car was his, then he said that it was his uncle’s, then he finally
             said that he got the car by taking some old lady out in the desert and
             “popping” her.

      •      He asked another witness if he had heard about the carjacking and
             murder, and then said that “we did it.”

      •      He told another witness that he and a friend were looking for a car
             they could use. He said his friend had a gun, and gave it to Jackson.
             Jackson then approached the car from the driver’s side, pulled out the
             handgun, and told the woman to move over. Jackson then got into the
             driver’s seat and his friend got into the backseat. They then drove into
             the desert and parked the car. His friend ordered the woman out and
             asked Jackson to keep the car running. Jackson then heard a scream
             and a gunshot. His friend came back, and they drove back into town.

      Although Jackson’s version of events varied, there was no version he told in

which he did not participate in the crimes and was absent from the murder scene.

The common elements from Jackson’s statements were that he and his friends

kidnapped a women, stole her car, and took her into the desert, where she was

killed. The details that he revealed to the witnesses were all consistent with the

evidence collected at the crime scene. Because the jury convicted Jackson of the

underlying crimes of kidnapping and armed robbery, the jury necessarily rejected

Jackson’s argument that he did not come into possession of Baeuerlen’s property

until after her death and that he played no role in her kidnapping.




                                          -5-
      Jackson’s defense, as argued by his counsel, was that there was no physical

evidence connecting him with the murder scene and that the witnesses who

testified against him were lying. Defense counsel did not argue, as to the felony

murder instruction, that the murder, whoever carried it out, was not in furtherance

of the underlying crimes. Nor did defense counsel’s theory of the case invite the

jury to draw a distinction between a “series of events” and “in furtherance” of the

underlying crimes.

      Therefore, we conclude that Jackson has failed to satisfy Strickland’s

prejudice prong because he has failed to establish a reasonable probability that, but

for his counsel’s failure to object to the felony murder instruction, the outcome of

the case would have been different. For the same reason, Jackson did not suffer

actual prejudice from any due process error resulting from the jury instruction.

Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

      Thus, we affirm the judgment of the district court, albeit on different

grounds.

      AFFIRMED.




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