GEORGE THOMAS LeROY v. Brian Belleque

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE THOMAS LeROY,
Petitioner - Appellant,
v.
BRIAN BELLEQUE,
Respondent - Appellee.
No. 14-35117
D.C. No. 3:10-cv-00516-ST
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Submitted October 13, 2015**
Portland, Oregon
Before: TASHIMA, GILMAN***, and BEA, Circuit Judges.
FILED
OCT 28 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
*** The Honorable Ronald Lee Gilman, Senior United States Circuit
Judge for the Sixth Circuit, sitting by designation.

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Petitioner-Appellant George LeRoy appeals from the district court’s denial
of his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
In 1996, LeRoy was convicted in Oregon state court of attempted murder,
attempted aggravated murder, first degree and second degree assault, and felon in
possession of a firearm. Because he raised an insanity defense, the jury was
instructed, as required by Oregon law, see Or. Rev. Stat. §§ 161.313, 161.327, that,
if they were to find the defendant “guilty except for insanity,” the defendant could
be released from custody if either the court or a state agency found that he was no
longer a danger to others (hereinafter the “consequences instruction”).
On direct appeal, the Oregon Court of Appeals held that the consequences
instruction did not violate either the Sixth or Fourteenth Amendments to the U.S.
Constitution. State v. LeRoy, 49 P.3d 115 (Or. Ct. App. 2002) (per curiam). The
Oregon Supreme Court denied review. State v. Leroy, 59 P.3d 1279 (Or. 2002).
After unsuccessfully seeking post-conviction relief in Oregon state court,
LeRoy filed this federal habeas petition, arguing that the consequences instruction
violated his Sixth and Fourteenth Amendment rights to an impartial jury and a fair
trial. The district court denied the petition.
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LeRoy’s habeas petition is governed by the Antiterrorism and Effective
Death Penalty Act of 1996. See 28 U.S.C. § 2254. Because LeRoy’s Sixth and
Fourteenth Amendment claims were adjudicated on the merits by the Oregon Court
of Appeals, we may grant LeRoy’s petition only if the state court’s 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 was
“based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” See 28 U.S.C. § 2254(d).
“The starting point for cases subject to § 2254(d)(1) is to identify the
‘clearly established Federal law, as determined by the Supreme Court of the United
States’ that governs the habeas petitioner’s claims.” Marshall v. Rodgers, 133 S.
Ct. 1446, 1449 (2013) (quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). “If
Supreme Court ‘cases give no clear answer to the question presented, . . . it cannot
be said that the state court unreasonably applied clearly established Federal law.’”
Hedlund v. Ryan, 750 F.3d 793, 799 (9th Cir. 2014) (quoting Wright v. Van Patten,
552 U.S. 120, 126 (2008)). Further, the Supreme Court “has held on numerous
occasions that it is not an ‘unreasonable application of clearly established Federal
law’ for a state court to decline to apply a specific legal rule that has not been
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squarely established by” the Supreme Court. Knowles v. Mirzayance, 556 U.S.
111, 122 (2009).
The Supreme Court has not held that giving a consequences instruction
related to an insanity defense violates a defendant’s constitutional rights. The
cases LeRoy cites are not to the contrary; their holdings do not “squarely establish”
the “specific legal rule” that LeRoy espouses. Accordingly, we conclude that the
decision of the Oregon Court of Appeals rejecting LeRoy’s Sixth and Fourteenth
Amendment claims was neither contrary to, nor an unreasonable application of,
clearly established federal law. The district court did not err in denying LeRoy’s
habeas petition.
AFFIRMED.
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