                             NOT FOR PUBLICATION

                      UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                             MAY 06 2014

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

JEFF A. HAWKINS,                                 No. 10-15809

                Petitioner - Appellant,          D.C. No. 3:08-cv-01482-MHP

  v.
                                                 MEMORANDUM*
R. HORAL, Warden,

                Respondent - Appellee.


                     Appeal from the United States District Court
                       for the Northern District of California
                      Marilyn H. Patel, District Judge, Presiding

                         Argued and Submitted April 8, 2014
                             San Francisco, California

Before: SCHROEDER, LIPEZ**, and CALLAHAN, Circuit Judges.

       Petitioner Jeff Hawkins appeals the denial of his petition for writ of habeas

corpus. We affirm.




            *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Kermit V. Lipez, of the United States Court of
Appeals for the First Circuit, sitting by designation.
      First, Hawkins argues that Moore v. Duckworth, 443 U.S. 713, 713-14

(1979) (per curiam), recognized a federal due process right in having sufficient

evidence to support a sanity verdict. However, under the applicable state law in

Moore, once the defendant raised the issue of insanity, sanity became an element

of the crime that the state had to prove beyond a reasonable doubt. See Price v.

State, 412 N.E.2d 783, 784-85 (Ind. 1980). As the State points out, in California,

Hawkins had the burden of proving insanity. See People v. Hernandez, 22 Cal.4th

512, 521-22 (Cal. 2000) (The sanity phase of trial "differs procedurally from the

guilt phase of trial in that the issue is confined to sanity and the burden is upon the

defendant to prove by a preponderance of the evidence that he was insane at the

time of the offense." (internal quotation marks omitted)). Hawkins has not

identified any case where the Supreme Court addressed challenges to the

sufficiency of the evidence regarding sanity when a defendant bears the burden of

proving insanity as an affirmative defense by a preponderance of the evidence.

Therefore, he has not shown that there is a state or federal right to have the State

prove sanity where it is not an element of the crime.

      Even assuming that we can review the state appellate court's decision that

there was sufficient evidence of Hawkins's sanity, we find that the state court's

decision did not reflect an unreasonable application of the standard set out in


                                           2
Jackson v. Virginia, 443 U.S. 307, 319 (1979). See Juan H. v. Allen, 408 F.3d

1262, 1274-75 (9th Cir. 2005) (holding that for habeas review the question is

whether the state appellate court's decision reflected an unreasonable application of

Jackson to the facts of the case). In Jackson, the Supreme Court held, "the relevant

question is 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, 443 U.S. at 319 (emphasis in

original). The state appellate court here found that certain testimony and the taped

interview of Hawkins supported the jury's sanity determination. The court found

that the jury reasonably could have concluded that Hawkins's claim that he did not

know the victim, his statement that he had been at his aunt's home on the night of

the attack, and his other explanations for the blood on his clothing were

inconsistent with insanity. That decision was not unreasonable.

      Second, Hawkins has not shown that the flight instruction "by itself so

infected the entire trial that the resulting conviction violates due process." Estelle

v. McGuire, 502 U.S. 62, 72 (1991) (internal quotation mark omitted). In fact, it

was reasonable for the state appellate court to conclude that there was actually no

error in giving the instruction as there was evidence of flight. As the district court

recognized, the instruction protected Hawkins's due process rights because it


                                           3
"meticulously limited how the jury could use such evidence" by instructing the jury

that it was to determine whether flight occurred and how much weight to assign it,

and that flight, if proved, may be considered in light of all other proved facts and

was insufficient on its own to prove guilt. Contrary to Hawkins's argument that the

flight instruction undermined his insanity defense, the instruction was given at the

guilt phase of trial, not the sanity phase. Moreover, Hawkins has not pointed to

any clearly established federal law as determined by the Supreme Court that

prohibits giving a flight instruction when the defendant raises the affirmative

defense of insanity. Cf. Houston v. Roe, 177 F.3d 901, 910 (9th Cir. 1999)

("Houston fails to point to any 'clearly established federal law as determined by the

Supreme Court' that prohibits giving a flight instruction when the defendant admits

committing the act charged. Consequently, this issue is inappropriate for § 2254

review.").

      AFFIRMED.




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