Unpublished Disposition, 869 F.2d 1497 (9th Cir. 1988)

MEMORANDUM^* 

Long, formerly a state prisoner, appeals the district court's denial of his habeas corpus petition, motion for reconsideration, and motion to amend petition. We affirm.

Following a jury trial, Long was convicted in Washington state court of second degree assault, taking a motor vehicle, and two counts of possessing stolen property. Long unsuccessfully appealed his convictions to the Washington Court of Appeals¹  and was denied discretionary review by the Washington Supreme Court.

Long's habeas petition challenges two jury instructions. First, Long contends that instruction # 15 unconstitutionally shifted the burden of proof regarding the knowledge element.²  Second, Long challenges instruction # 7 on the grounds that it erroneously defines "assault" in terms not requiring proof of knowledge.³ 

The district court referred this case to the magistrate who filed a report on October 28, 1987 recommending the district court deny Long's habeas corpus petition. On November 9, 1987, Long filed a motion for leave to file an amended petition. On December 16, 1987, the court denied Long's motion to amend, and on December 29, 1987, adopted the magistrate's report and recommendation and entered judgment dismissing the action with prejudice. On March 18, 1988, the district court denied Long's motion for reconsideration.

We review a district court's denial of a habeas corpus petition de novo. Terrovona v. Kincheloe, 852 F.2d 424, 426 (9th Cir. 1988). The denial of leave to amend a complaint after a responsive pleading has been filed is reviewed for an abuse of discretion. Parker v. Joe Lujan Enterprises, Inc., 848 F.2d 118, 120-21 (9th Cir. 1988).

A. District Court's Denial of Motion to Amend Petition

Long moved to amend his petition in order to add an additional issue dealing with sufficiency of evidence. The district court denied the motion on the grounds that Long had not exhausted his state remedies for this new issue, and that by allowing Long to amend his complaint, his habeas petition would then contain unexhausted claims and be subject to further amendment or dismissal. Rose v. Lundy, 455 U..S. 509, 510 (1982). We find that Long had fully exhausted the sufficiency of evidence issue, but the district court's denial of the motion to amend was not error because the issue fails on the merits.

Long submits that the pertinent portion of Instruction No. 15 is as follows: "if a person has information which would lead a reasonable person in the same situation to believe that facts exist which are describe [d] by law as being a crime the jury is permitted but not required to find that he or she acted with knowledge." Long argues that the record is wholly devoid of evidence showing that he had any information concerning the status of the car or guns that would support a permissible inference that a reasonable person in the same situation would have known beyond a reasonable doubt that they were stolen.

Long's argument is unpersuasive. As the district court noted, permissive inferences such as that contained in the knowledge instruction have repeatedly been evaluated and held to be constitutional. See, e.g., United States v. Washington, 819 F.2d 221, 225 (9th Cir. 1987) (instruction advising of permissive inference concerning an essential element does not violate due process unless the inference is unjustified by common sense); State v. Gogolin, 45 Wash. App. 640, 647, 727 P.2d 683, 687 (1936) (instruction identical to that which petitioner challenges is constitutional). Here, the inference that Long had knowledge that the car and guns were stolen is justified by common sense even if the facts are viewed as narrowly as Long argues. The fact that Long tried to drive away after being stopped and had bullets in his possession within his admitted belongings substantiates a common sense inference that the car and guns were stolen.

Long argues that the jury instructions defined assault at a higher level of culpability than required and thus permitted conviction with no proof of the element of knowledge. This argument has no merit and is actually nonsensical.

Instruction # 7 stated the mens rea of assault is "intentional." This mental state is indeed a higher level of culpability than the "knowingly" element requisite to the crime of second degree assault. However, under Wash.Rev.Code sec. 9 A. 080.010(2), proof of a higher mental state also establishes the presence of all lower mental states. See State v. Burns, 20 Wash. App. 72, 578 P.2d 554 (1978). Instruction # 7 did not prejudiced Long. Rather, he benefited because the jury was required to find intent instead of mere knowledge.

The district court's denial of Long's petition for writ of habeas corpus, motion to amend, and motion for reconsideration is

AFFIRMED.