Jerome Markay v. L. BROWN and ATTORNEY GENERAL FOR THE STATE OF CALIFORNIA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEROME MARKAY,
Petitioner - Appellant,
v.
L. BROWN and ATTORNEY GENERAL
FOR THE STATE OF CALIFORNIA,
Respondents - Appellees.
No. 08-16538
D.C. No. 2:02-cv-00152-GEB-
GGH
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., Senior District Judge, Presiding
Submitted March 9, 2015 **
San Francisco, California
Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.
Jerome Markay, appealing from the district court’s denial of his petition for
writ of habeas corpus, argues that his absence at resentencing violated his right to
be present at all critical stages of trial. We affirm the district court’s denial of
FILED
MAR 19 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 concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Markay’s habeas petition because even if Markay had a constitutional right to be
present at resentencing, and even if he did not waive that right, the California Court
of Appeal did not unreasonably determine that any error in his case was harmless.
See Campbell v. Rice, 408 F.3d 1166, 1172 (9th Cir. 2005) (en banc); Rice v.
Wood, 77 F.3d 1138, 1144 (9th Cir. 1996) (en banc).
Nothing in the record suggests that Markay’s absence influenced the
sentencing court’s decision. The court was familiar with Markay’s mental health
history, and Markay was represented by counsel. Markay’s speculation that he
would have received a lighter sentence had he been present is inadequate, at least
on this record, to demonstrate that his absence had a “substantial and injurious
effect” on the outcome. Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
AFFIRMED.

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