FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM EMERSON TOWNSEND, 

No. 07-15712 Petitioner-Appellant,

D.C. No.

v.  CV-03-00520-

MICHAEL KNOWLES, Warden, Ione GEB(PAN)

State Prison, OPINION Respondent-Appellee. 

Appeal from the United States District Court

for the Eastern District of California

Garland E. Burrell, District Judge, Presiding

Argued and Submitted

March 9, 2009—San Francisco, California

Filed April 21, 2009

Before: Procter Hug, Jr. and Carlos T. Bea, Circuit Judges,

and Nancy G. Edmunds,* District Judge.

Opinion by Judge Edmunds

*The Honorable Nancy G. Edmunds, United States District Judge for

the Eastern District of Michigan, sitting by designation. 

4625
COUNSEL

John Paul Balazs, Law Offices of John P. Balazs, for the

petitioner-appellant. 

Robert Todd Marshall, Assistant Attorney General, AGCA -

Office of the California Attorney General (SAC), for the

respondent-appellee. 

OPINION

EDMUNDS, District Judge: 

William Emerson Townsend, a California state prisoner,

appeals the district court’s order denying his 28 U.S.C. § 2254

habeas corpus petition, which challenged his conviction for

second degree murder. In this appeal, we are asked to decide

whether Townsend’s petition is untimely based on an intervening change in the law, see Pace v. DiGuglielmo, 544 U.S.

408 (2005). We conclude that, although he is ineligible for

statutory tolling, Townsend is entitled to equitable tolling. See

Harris v. Carter, 515 F.3d 1051 (9th Cir. 2008), cert. denied

sub nom. Brunson v. Harris, 129 S. Ct. 397 (2008). Because

equitable tolling renders Townsend’s petition timely filed, we

consider the merits of his appeal. We affirm the district

court’s denial of Townsend’s habeas petition. The district

court correctly concluded that the California Superior Court’s

rejection of Townsend’s due process and ineffective assistance claims was not contrary to or an unreasonable application of clearly established federal law. 

I

A. State Court Proceedings

On June 10, 1997, a complaint was filed in Sacramento

County Superior Court charging Townsend with one count of

TOWNSEND v. KNOWLES 4629
murder and alleging an enhancement that he personally used

a dangerous weapon, i.e., a knife, during the charged crime of

murder. A jury acquitted Townsend of first degree murder but

found him guilty of the lesser included crime of second

degree murder. Cal. Penal Code § 187. The jury also found

true the allegation that Townsend personally used a knife during the murder. Cal. Penal Code § 12022(b). 

On September 4, 1998, Townsend was sentenced to 15

years to life for his conviction of second degree murder and

was further ordered to serve a one-year consecutive sentence

for his personal use of a knife within the meaning of California Penal Code § 12022(b). That same day, Townsend filed a

notice of appeal. 

On June 30, 2000, the California Court of Appeal affirmed

Townsend’s judgment and sentence. Townsend filed a timely

petition for review in the California Supreme Court. That petition was denied on October 18, 2000. 

On November 20, 2001, Townsend filed a state habeas

petition in the Sacramento Superior Court raising for the first

time the claims he later raised in his federal habeas petition.

On December 17, 2001, the Superior Court issued a reasoned opinion denying Townsend’s habeas petition as both

untimely under In re Clark, 855 P.2d 729 (Cal. 1993), and

without merit. 

On February 7, 2002, Townsend filed a state habeas petition in the California Court of Appeal reiterating the claims

asserted in his Superior Court petition.1 The California Court

1Under California law, “a state prisoner may seek review of an adverse

lower court decision by filing an original petition (rather than a notice of

appeal) in the higher court, and that petition is timely if filed within a ‘reasonable time.’ ” Waldrip v. Hall, 548 F.3d 729, 734 (9th Cir. 2008) (internal quotations and citations omitted). 

4630 TOWNSEND v. KNOWLES
of Appeal denied Townsend’s petition without explanation on

February 21, 2002. 

On June 13, 2002, Townsend filed a state habeas petition

in the California Supreme Court reiterating the same claims

as those asserted in his Superior Court petition. The California

Supreme Court issued a silent denial of Townsend’s state

habeas petition on January 22, 2003. 

B. Federal Court Proceedings

On March 13, 2003, Townsend filed his federal habeas

petition in the district court, and it was referred to a magistrate

judge. The government filed an answer on July 8, 2003 that

did not assert, as an affirmative defense, that the one year statute of limitations period under the Antiterrorism and Effective

Death Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2244(d)(1),

had expired. 

On April 21, 2006, the magistrate judge filed findings and

recommendations, finding that Townsend’s claims were not

procedurally defaulted but recommending that Townsend’s

petition be denied on the merits. Townsend filed objections on

May 7, 2006. The district court, after a de novo review,

adopted the findings and recommendations in full, and denied

Townsend’s federal habeas petition on June 5, 2006. 

Townsend filed a timely notice of appeal, and this court

granted Townsend’s certificate of appealability with respect

to the following three issues: (1) whether the trial court erred

by instructing the jury with regard to the felony murder rule;

(2) whether trial counsel provided ineffective assistance by

failing to challenge the instruction; and (3) whether these

claims are procedurally barred.2

2We decline to address the uncertified issue in this case because Townsend has not satisfied his burden of showing “that jurists of reason would

find it debatable whether the petition states a valid claim of the denial of

a constitutional right . . .” Slack v. McDaniel, 529 U.S. 473, 484 (2000).

TOWNSEND v. KNOWLES 4631
II

A. Timeliness of Townsend’s Federal Habeas Petition

Before addressing the merits of Townsend’s petition, we

must decide whether that petition is untimely based on an

intervening change in the law, see Pace v. DiGuglielmo, 544

U.S. at 413-14.

3

“The facts underlying this claim for tolling

of AEDPA’s limitations period are undisputed. We review de

novo whether the statute of limitations should be tolled.”

Harris, 515 F.3d at 1054. 

Townsend’s conviction became final on January 16, 2001,

and absent tolling, the last day for Townsend to file a federal

habeas petition was January 16, 2002. Townsend’s judgment

of conviction became “final” within the meaning of 28 U.S.C.

§ 2244(d)(1)(A) when the time for filing a petition for writ of

certiorari in the United States Supreme Court expired. “A

judgment becomes final for purposes of 28 U.S.C. § 2244(d)

when the period for filing a petition for certiorari in the U.S.

Supreme Court expires. Petitions for certiorari must be filed

in the U.S. Supreme Court within 90 days after the supreme

court of the state in which the prisoner was convicted issues

its opinion or denies review.” Harris, 515 F.3d at 1053 n.1

(internal citations omitted). As shown below, Townsend is not

eligible for statutory tolling but is entitled to equitable tolling.

3Townsend argues that the government waived any challenge to the

timeliness of his petition by failing to raise the statute of limitations as an

affirmative defense before the district court. Although this court will not

generally address issues raised for the first time on appeal, where as here

there has been an intervening change in law that we need only apply to

an adequately developed record, we may consider the issue. See In re Cellular 101, Inc., 539 F.3d 1150, 1156 (9th Cir. 2008). Because the Supreme

Court’s decision in Pace changed the controlling law regarding tolling of

the statute of limitations for habeas corpus petitions and the record is adequately developed in this regard, we choose to address the timeliness of

Townsend’s petition. 

4632 TOWNSEND v. KNOWLES
1. Statutory Tolling

[1] AEDPA imposes a one-year statute of limitations period

for federal habeas petitions and also addresses tolling of that

limitations period. 28 U.S.C. § 2244(d). Section 2244(d)(2)

provides that “[t]he time during which a properly filed application for State post-conviction or other collateral review with

respect to the pertinent judgment or claim is pending shall not

be counted toward any period of limitation under this subsection.” Id. at 2244(d)(2) (emphasis added). The United States

Supreme Court has interpreted the statutory term “properly

filed.” In Artuz v. Bennett, 531 U.S. 4, 8 (2000), it determined

that “an application is ‘properly filed’ when its delivery and

acceptance are in compliance with the applicable laws and

rules governing filings.” It was subsequently determined, in

Pace, 544 U.S. at 417, that a state’s “time limits, no matter

their form, are ‘filing’ conditions.” Accordingly, if “the state

court rejected” a state habeas petition “as untimely, it was not

‘properly filed,’ and [the petitioner] is not entitled to statutory

tolling under § 2244(d)(2).” Id.; accord Bonner v. Carey, 425

F.3d 1145, 1148-49 (9th Cir. 2005) (observing that “[t]he fact

that California provides exceptions to its timely filing requirement” and “the fact that the superior court also denied [the

petitioner]’s petition on the merits” do not alter the conclusion

that an untimely state filing is not properly filed within the

meaning of § 2244(d)(2)), opin. amended on other grounds,

439 F.3d 993 (9th Cir. 2006). 

[2] Townsend is not entitled to statutory tolling. Because

the California Court of Appeal and Supreme Court denied his

state habeas petitions without any reasoning, we look to the

Sacramento Superior Court’s decision denying Townsend’s

habeas petition as the last reasoned state court decision. Martinez v. Garcia, 379 F.3d 1034, 1037 n.2 (9th Cir. 2004). The

California Superior Court held that Townsend’s petition was

untimely; and, therefore, the petition was not “properly filed”

as required by 28 U.S.C. § 2244(d)(2). See Pace, 544 U.S. at

413-14, 417; Bonner, 425 F.3d at 1148-49. Absent equitable

TOWNSEND v. KNOWLES 4633
tolling, Townsend’s habeas petition is time-barred because

AEDPA’s one-year statute of limitations period expired on

January 16, 2002, and he did not file his federal habeas petition until March 13, 2003. 

2. Equitable Tolling

[3] Although he is ineligible for statutory tolling, Townsend is entitled to equitable tolling. The threshold for obtaining equitable tolling is very high, but it applies where a

petitioner shows that despite diligently pursuing his rights,

some extraordinary circumstance prevented him from timely

filing. Waldron-Ramsey v. Pacholke, 556 F.3d 1008, 1011

(9th Cir. 2009) (clarifying that this court’s standard for equitable tolling is consistent with the standard discussed in Pace).

In Harris, this court observed that “[u]ntil the Supreme Court

decided Pace on April 27, 2005, our circuit law was different.

Our precedent stated that an untimely . . . State postconviction petition was ‘properly filed’ for purposes of

§ 2244(d) and tolled the statute of limitations while the petition was pending in the state courts.” Harris, 515 F.3d at 1053

(citing Dictado v. Ducharme, 244 F.3d 724, 727-28 (9th Cir.

2001)). Prior to Pace, this court had determined that

§ 2244(d)’s statute of limitations was tolled for “ ‘all of the

time during which a state prisoner is attempting, through

proper use of state court procedures, to exhaust state court

remedies with regard to a particular post-conviction application.’ ” Harris, 515 F.3d at 1053 n.3 (quoting Nino v. Galaza,

183 F.3d 1003, 1006 (9th Cir. 1999)). After Pace, an untimely

filed state habeas petition no longer tolls § 2244(d)’s one-year

statute of limitations. The petitioner in Harris, similar to

Townsend here, “argued that he was entitled to equitable tolling of the statute of limitations because he relied on controlling Ninth Circuit precedent in waiting to file his federal

habeas petition.” Harris, 515 F.3d at 1054. This court found

Harris’ argument persuasive. It concluded that his “circumstances justify equitable tolling” because he “diligently pursued his rights” in state court and “ensur[ed] that enough time

4634 TOWNSEND v. KNOWLES
would remain to file a federal habeas petition under the thenexisting Dictado rule.” Id. at 1055-56. Through no fault of his

own, “Harris’ petition became time-barred the moment that

Pace was decided.” Id. at 1056. “The Supreme Court’s overruling of the Dictado rule made it impossible for Harris to file

a timely petition.” Id. This court concluded that “[t]hese are

precisely the circumstances in which equitable principles justify tolling of the statute of limitations.” Id. The same holds

true here. 

[4] Townsend asserts that he relied on controlling Ninth

Circuit precedent in waiting to file his federal habeas petition.

Townsend also diligently pursued his rights in his postconviction habeas petition in the state courts and ensured that

he had enough time remaining to file a federal habeas petition

under the then-existing Dictado rule. Under that rule, 308

days had expired between January 17, 2001, when AEDPA’s

one-year statute of limitations period began to run, and

November 20, 2001, when Townsend filed his first state

habeas petition. The entire period of time between November

20, 2001 and the California Supreme Court’s summary denial

of his state habeas petition on January 22, 2003 would have

been tolled under the then-existing Dictado rule. An additional 50 days elapsed between that January 22, 2003 date and

the day he filed his federal habeas petition on March 13,

2003. Because less than 365 days had expired, Townsend’s

federal habeas petition would have been considered timely

pre-Pace. Accordingly, we conclude that equitable principles

dictate that AEDPA’s one-year statute of limitations be tolled

here. 

We now consider whether Townsend’s claims were procedurally defaulted. This court reviews de novo the denial of a

petition for a writ of habeas corpus brought under 28 U.S.C.

§ 2254. Harris, 515 F.3d at 1054. 

B. Procedural Default

The Sacramento County Superior Court denied Townsend’s

first post-conviction habeas petition as untimely. The governTOWNSEND v. KNOWLES 4635
ment argues, therefore, that Townsend’s claims were procedurally defaulted. The district court concluded that the

government failed to meet its burden of proving that California’s untimeliness rule is an independent and adequate state

procedural ground for denying habeas relief. We affirm the

district court’s decision.

[5] If the state court’s denial of Townsend’s state habeas

petition for untimeliness “rest[ed] on a state law ground that

is independent of the federal question and adequate to support

the judgment,’ ” then Townsend “is procedurally barred from

pursuing his claims in federal court.” Bennett v. Mueller, 322

F.3d 573, 580 (9th Cir. 2003) (quoting Coleman v. Thompson,

501 U.S. 722, 729 (1991)). To constitute a procedural bar, the

state’s rule had to be independent and adequate at the time

Townsend purportedly failed to comply with it. See Fields v.

Calderon, 125 F.3d 757, 760 (9th Cir. 1997). We consider

whether the California timeliness bar was independent and

adequate in 2001, when the state trial court found Townsend’s

petition to be untimely. This court has recognized that California’s timeliness rule became independent of federal law in

1998, Bennett, 322 F.3d at 582-83, so we need only consider

whether the California timeliness rule was adequate as of

2001. 

To be adequate, a state procedural rule must be “wellestablished and consistently applied.” Id. at 583. A procedural

rule can be neither well-established nor consistently applied

if it is not “clear and certain.” King v. LaMarque, 464 F.3d

963, 965 (9th Cir. 2006). State procedural rules allowing the

exercise of judicial discretion are not necessarily uncertain,

but the exercise of any such discretion must be according to

standards that are not vague or ambiguous. Bennett, 322 F.3d

at 583; see King, 464 F.3d at 966 (“[S]tate procedural rules

with overly vague standards do not provide petitioners with

sufficient notice of how they may avoid violating the rules.”).

[6] The government concedes that under the burdenshifting analysis articulated in Bennett, it bears the burden of

4636 TOWNSEND v. KNOWLES
proving the adequacy of the California rule. See 322 F.3d at

585-86. To do so, the government should present state authority regarding the rule. See id. at 586. Because California’s

timeliness rule differs for capital and non-capital cases, capital cases should only be considered in non-capital cases insofar as they discuss the aspects of the rule that apply to all state

habeas petitions. See id. at 581-83 (considering capital cases

to determine whether the state bar was independent of federal

law but noting that reliance on a capital case was misplaced

in deciding the adequacy of the timeliness rule for a noncapital case). Also, state authority from after the time of the

purported default is generally irrelevant in determining

whether the rule was adequate at the time in question. Lambright v. Stewart, 241 F.3d 1201, 1203 n.2 (9th Cir. 2001).

Thus, to meet its burden, the government in this case should

have presented state authority showing that the timeliness rule

was clear and certain, well-established, and consistently

applied in non-capital cases as of 2001. 

[7] To show that the California timeliness rule was clear at

the time of Townsend’s purported default, the government

offers this court’s definition of the state rule and argues that

the rule is easily defined. We disagree. In California, a habeas

petition is untimely if it is filed after an unjustified, substantial delay. In re Clark, 855 P.2d 729, 750, 762-63 (Cal. 1993);

see also King, 464 F.3d at 966; Bennett, 322 F.3d at 581. This

rule is easily stated, but “substantial delay” has not yet been

defined. For capital cases, California has offered some guidance. The California Supreme Court adopted standards for

habeas petitions in capital cases in 1986, those standards created “a presumption of timeliness if a [habeas] petition by a

capital defendant is filed within 90 days of the final due date

for the filing of an appellant’s reply brief [on direct appeal]

. . . .” Clark, 855 P.2d at 751. At least for capital cases, it

seems that anytime within 90 days4 after the reply brief due

date is not “substantial delay.” 

4Since deciding Clark, the California Supreme Court has extended the

presumptively timely period for habeas petitions in capital cases to 180

TOWNSEND v. KNOWLES 4637
As the government admits, this presumption of timeliness

does not apply to non-capital cases. See id. at 751. In King,

this court noted that in Clark the California Supreme Court

provided no standards for determining what constitutes “substantial delay” in a non-capital case, 464 F.3d at 966, and the

government here offers no state authority setting forth such

standards. The government attempts to prove the certainty of

the rule by noting how frequently it is applied, to capital and

non-capital cases alike. Frequent application of a vague standard in dispositions that offer no guidance, however, does not

serve to clarify that standard. See King, 464 F.3d at 966 (“The

rule’s ambiguity is not clarified by the California Supreme

Court’s application of the timeliness bar, in part because the

court usually rejects cases without explanation, only citing

Clark and Robbins, as it did here.”). The government also

urges us to consider the clarity of the exceptions to the general rule, for example, when “substantial delay” is justified.

No matter how clear the exceptions may be, they do not lend

clarity to the underlying rule. See id.

In a unique argument, the government contends that California’s timeliness bar is certain because it is similar to

AEDPA’s statute of limitations. Both timeliness bars, it

argues, begin measuring the passage of time when a petitioner

knew or should have known of the factual bases for his claim.

Compare In re Robbins, 959 P.2d 311, 317 (Cal. 1998)

(“Substantial delay is measured from the time the petitioner

or his or her counsel knew, or reasonably should have known,

of the information offered in support of the claim and the

legal basis for the claim.”) with 28 U.S.C. § 2244(d)(1) (“The

limitation period shall run from the latest of . . . the date on

days after the reply brief due date or 36 months after appointment of

appellate counsel, whichever is later. See Cal. Supreme Ct., Supreme

Court Policies Regarding Cases Arising From Judgments of Death, policy

3, std. 1-1.1 (Jan. 1, 2008), available at http://www.courtinfo.ca.gov/

courts/supreme/aa02f.pdf. 

4638 TOWNSEND v. KNOWLES
which the factual predicate of the claim or claims presented

could have been discovered through the exercise of due diligence.”). The two timeliness bars may share a type of triggering event, but the government ignores the major distinction:

AEDPA requires filing within one year of that event and California requires a petitioner to file without “substantial delay”

from that event. Clarity of the triggering event does not make

clear what amount of time may pass before a filing is

untimely. 

[8] Because the government offers no evidence that California operated under clear standards for determining what

constituted “substantial delay” in 2001, it failed to meet its

burden of proving that California’s timeliness bar was sufficiently clear and certain to be an adequate state bar. The district court correctly concluded that the government failed to

meet its burden and that Townsend’s claims are not procedurally defaulted. We, therefore, address the merits of Townsend’s claims. 

C. Townsend’s Due Process Rights

Townsend claims that he is entitled to habeas relief because

the California trial court violated his Fourteenth Amendment

due process rights when it instructed the jury on the crime of

felony-murder, thus permitting the jury to convict him of second degree murder absent proof of malice aforethought. See

Carella v. California, 491 U.S. 263, 265 (1989) (observing

that “[t]he Due Process Clause of the Fourteenth Amendment

denies States the power to deprive the accused of liberty

unless the prosecution proves beyond a reasonable doubt

every element of the charged offense.”). We affirm the denial

of Townsend’s habeas claim based upon a violation of his due

process rights. 

Federal habeas corpus relief is available to a state prisoner

when it is shown that “a state court’s adjudication of his constitutional claim was ‘contrary to, or involved an unreasonTOWNSEND v. KNOWLES 4639
able application of, clearly established Federal law, as

determined by the Supreme Court of the United States.’ ”

Middleton v. McNeil, 541 U.S. 433, 436 (2004) (quoting 28

U.S.C. § 2254(d)(1)). Here, Townsend challenges “the state

court’s application of governing federal law,” and thus he is

required to show that this application is “not only erroneous,

but objectively unreasonable.” Id. (internal quotation marks

and citations omitted). 

[9] Due process requires that jury instructions in criminal

trials give effect to the prosecutor’s burden of proving every

element of the crime charged beyond a reasonable doubt. Id.

at 437. “Nonetheless, not every ambiguity, inconsistency, or

deficiency in a jury instruction rises to the level of a due process violation.” Id. Federal habeas relief is available for jury

instruction errors that “so infected the entire trial that the

resulting conviction violates due process,” thus rendering the

trial fundamentally unfair. Estelle v. McGuire, 502 U.S. 62,

72 (1991). The challenged jury instructions “may not be

judged in artificial isolation, but must be considered in the

context of the instructions as a whole and the trial record.” Id.

(internal quotation marks and citation omitted). “If the charge

as a whole is ambiguous, the question is whether there is a

reasonable likelihood that the jury has applied the challenged

instruction in a way that violates the Constitution.” Middleton,

541 U.S. at 437. The law presumes that the jury follows the

instructions given. Richardson v. Marsh, 481 U.S. 200, 211

(1987). 

Townsend was charged with murder, and the state also

alleged with specificity that he personally used a deadly and

dangerous weapon, namely a knife, during the commission of

the charged murder. Townsend’s defense was that he acted at

most in the heat of passion or at least in self-defense. 

Townsend claims that, after the trial court instructed his

jury on the elements of first and second degree murder and

voluntary and involuntary manslaughter, it erroneously

4640 TOWNSEND v. KNOWLES
instructed the jury on the theory of felony murder. Townsend

argues that this erroneous instruction, when combined with

instructions given on the enhancement allegation that Townsend personally used a deadly or dangerous weapon, rose to

the level of a due process violation because it permitted the

jury to convict him of felony murder without finding malice

aforethought. We reject Townsend’s arguments. 

Townsend’s jury was instructed on the elements of first

degree murder, second degree murder, voluntary manslaughter, and involuntary manslaughter. These instructions

expressly informed the jury that the crime of murder is the

unlawful killing of a human being with malice aforethought

whereas the crime of manslaughter is the unlawful killing of

a human being without malice aforethought. The jury was

given additional instructions based on California Criminal

Jury Instructions 8.50 and 8.51 designed to help them to distinguish between the crimes of murder and manslaughter: 

The distinction between murder and manslaughter is

that murder requires malice while manslaughter does

not. 

* * * 

To establish that a killing is murder and not manslaughter, the burden is on the People to prove

beyond a reasonable doubt each of the elements of

murder, and that the act which caused the death was

not done in the heat of passion, or upon a sudden

quarrel or in the actual, even though unreasonable

belief, in the necessity to defend against imminent

peril to life or great bodily injury. 

* * * 

If a person causes another’s death, while committing

a felony which is dangerous to human life, the crime

TOWNSEND v. KNOWLES 4641
is murder. If a person causes another’s death while

committing a misdemeanor or infraction which is

dangerous to human life under the circumstances of

its commission, the crime is involuntary manslaughter. 

There are many acts which are lawful but nevertheless endanger human life. If a person causes another’s death by doing an act or engaging in conduct in

a criminally negligent manner, without realizing the

risk involved, he is guilty of involuntary manslaughter. If, on the other hand, the person realized the risk

and acted in total disregard of the danger to life

involved, malice is implied, and the crime is murder.

(Emphasis added). 

The jury was also instructed on the enhancement allegation.

If the jury found Townsend guilty of the charged crime of

murder or the lesser included crime of manslaughter, they

were instructed to then determine whether the government

had proven beyond a reasonable doubt that Townsend had

personally used a deadly or dangerous weapon during the

commission of the crime of murder or manslaughter. 

Townsend improperly plucks a sentence that references

both “felony” and “murder” from a jury instruction illustrating the difference between murder and manslaughter, combines it with the enhanced allegation instruction, and argues

that these instructions permitted the jury to convict him of felony murder absent a finding of malice aforethought because

an underlying felony—assault with a deadly weapon—was an

integral part of the murder and merged with the charged crime

of murder. See People v. Hansen, 885 P.2d 1022, 1028 (Cal.

1994), overruled by People v. Sarun Chun, ___ P.3d ___,

2009 WL 805180 (Cal. 2009).5 Townsend’s argument ignores

5

In Sarun-Chun, the California Supreme Court overruled Hansen,

applying a new merger analysis for felony-murder, but under the new

4642 TOWNSEND v. KNOWLES
essential facts. He was not charged with and his jury was not

instructed on felony-murder. See Cal. Crim. J. Instr. 8.32. He

was not charged with and his jury was not instructed on any

felony other than murder and manslaughter. He was not

charged with the felony of assault with a deadly weapon, and

his jury was not instructed that an assault with a deadly

weapon is a felony that is inherently dangerous to human life.

Townsend’s jury, therefore, had no basis for imputing malice

based upon the uncharged felony of assault with a deadly

weapon. 

[10] Townsend was found guilty of second degree murder.6

The second degree murder instructions required the jury to

find that Townsend acted with either express or implied malice aforethought. He was not acquitted of murder and found

guilty of the lesser included charge of manslaughter—a

charge that did not require proof of malice aforethought.

Thus, contrary to Townsend’s arguments here, the jury must

have found that he acted with malice. 

Townsend’s reliance on Suniga v. Bunnell, 998 F.2d 664,

666 (9th Cir. 1993), is misplaced. Unlike the tangential reference at issue here, in Suniga, the trial court did instruct the

jury on the separate theory of felony-murder. Unlike here, the

jury in Suniga was also instructed that an assault with a

deadly weapon is a felony that is inherently dangerous to

human life. Id. at 666, 668-70. The Suniga court found a due

process violation because, by virtue of being instructed on felony murder as well as the felony of assault with a deadly

weapon, the jury could have convicted Suniga of murder by

analysis we believe assault with a deadly weapon would continue to merge

with murder. Sarun-Chun, 2009 WL 805180 at *17-18. Given our conclusion, the change is irrelevant. 

6The jury also found that the government had proven beyond a reasonable doubt that Townsend had personally used a deadly or dangerous

weapon during the commission of the crime of murder. 

TOWNSEND v. KNOWLES 4643
inappropriately relying on his commission of the underlying

felony and without considering the element of malice. Id. at

669-70. Because Townsend’s jury was not provided with the

instructions found objectionable in Suniga, the reasoning and

result in that decision do not apply here. 

[11] Considering the challenged instruction in the context

of all the instructions provided, we conclude that its tangential

reference to “felony” and “murder” did not so infect the trial

“that the resulting conviction violates due process.” Estelle,

503 U.S. at 72. A review of Townsend’s jury instructions has

not shown that “there is a reasonable likelihood that the jury

has applied the challenged instruction in a way that violates

the Constitution.” Id. (internal quotation marks and citation

omitted). 

[12] Because the challenged jury instruction did not so

infect the entire trial that Townsend’s resulting conviction

violated due process, we conclude that the district court did

not err when it denied Townsend’s claim for habeas relief.

The district court correctly concluded that the California

Superior Court’s rejection of Townsend’s due process claim

was not contrary to or an unreasonable application of clearly

established federal law. 

D. Ineffective Assistance of Counsel

[13] Townsend claims that his trial counsel rendered ineffective assistance because he failed to object to the jury

instruction that made the alleged reference to felony murder.

The Sixth Amendment guarantees the effective assistance of

counsel. See Strickland v. Washington, 466 U.S. 668 (1984).

To prevail on this claim, Townsend must show that his counsel’s performance fell below an objective standard of reasonableness and that he was prejudiced by counsel’s conduct. Id.

at 687. Because Townsend suffered no prejudice as a result of

his trial counsel’s inaction, we conclude that the district court

did not err when it denied Townsend’s claim for habeas relief.

4644 TOWNSEND v. KNOWLES
[14] Prejudice requires a showing that “there is a reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.” Id. at

694. “A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. Townsend cannot

demonstrate prejudice for the same reasons he cannot show

error in his direct challenge to the jury instruction that allegedly references felony murder. As discussed above, it was not

reasonably likely that the jury based Townsend’s second

degree murder conviction upon the challenged instruction

because the jury was not instructed on any underlying felony,

was not instructed that an assault with a deadly weapon was

a felony that was inherently dangerous to human life, and was

not instructed on the elements of felony murder. When considered in the context of all the instructions provided to

Townsend’s jury, even if Townsend’s counsel had objected

and excluded the challenged instruction, “the probability that

the result would have been different is far from reasonable.”

Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000).

Because he has not shown that his counsel’s silence on this

issue prejudiced him, Townsend’s claim of ineffective assistance fails. 

III

We AFFIRM the district court’s decision denying Townsend’s 28 U.S.C. § 2244 habeas petition. The district court

correctly concluded that the California Superior Court’s rejection of Townsend’s jury instruction and ineffective assistance

claims was not contrary to or an unreasonable application of

clearly established federal law. 

AFFIRMED.

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