NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        OCT 21 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

GERONIMO POLINA,                                No.    18-56166

                Petitioner-Appellant,           D.C. No.
                                                3:16-cv-02133-WQH-RNB
 v.

W. L. MONTGOMERY, Acting Warden;                MEMORANDUM*
XAVIER BECCERA,

                Respondents-Appellees.

                   Appeal from the United States District Court
                     for the Southern District of California
                   William Q. Hayes, District Judge, Presiding

                            Submitted October 6, 2020**
                               Pasadena, California

Before: M. SMITH and LEE, Circuit Judges, and CARDONE,*** District Judge.

      Polina appeals a judgment of the district court denying his petition for a writ

of habeas corpus under 28 U.S.C. § 2254. The district court granted Polina’s


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
request for a certificate of appealability on two issues. Because the parties are

familiar with the facts of this case, we do not recite them here except as necessary

to provide context. We have jurisdiction pursuant to 28 U.S.C. § 2253 and we

affirm.

      To obtain federal habeas relief under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA), a petitioner must demonstrate that the state court

decision denying his claims on the merits was contrary to, or 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.

28 U.S.C. § 2254(d). We review de novo a district court’s denial of habeas relief.

Murray v. Schirro, 

, 996 (9th Cir. 2014) (citing Lopez v. Thompson,

, 1116 (9th Cir. 2000) (en banc)). To do so, we look to the last

reasoned state court opinion, here the California Court of Appeal’s unpublished

decision affirming Polina’s conviction. See

Fleming, 

, 1091 (9th Cir. 2005)).

1.    Polina challenges the state trial court’s jury instruction on the murder

conspiracy count and claims that the prosecutor advanced an improper aiding and

abetting theory of liability regarding that count. On habeas review, federal courts

are bound by a state court’s interpretation of state law. Bradshaw v. Richey, 

, 76 (2005). This applies to challenges to the state court’s jury instructions.


                                          2
Estelle v. McGuire, 

, 71–72 (1991) (citing Marshall v. Lonberger, 

, 438, n.6 (1983)) (holding that a challenge that a jury instruction “was

allegedly incorrect under state law is not a basis for habeas relief”). As a result, we

are bound by the state appellate court’s determination that the conspiracy

instructions as given by the trial court, including the modifications to the standard

CALCRIM Nos. 415 and 563 instructions, correctly stated California law

regarding the elements of conspiracy to commit murder. See 

; 

–72 (citing 

, n.6).

Polina’s claim fails.

      Moreover, to prevail on an instructional error claim on habeas review, Polina

must show “both that the instruction was ambiguous and that there was ‘a

reasonable likelihood’ that the jury applied the instruction in a way that relieved

the prosecution of its burden of proving every element of the crime beyond a

reasonable doubt.” Waddington v. Sarausad, 

, 190–91 (2009)

(quoting 

). The relevant question “is ‘whether the ailing

instruction by itself so infected the entire trial that the resulting conviction violates

due process.’”

(quoting 

). Thus, on habeas

review, Polina must show there was a “reasonable likelihood that the jury has

applied the challenged instruction in a way that violates the Constitution.”




                                            3
Middleton v. McNeil, 

, 437 (2004) (citations and internal quotation

marks omitted).

      A review of the trial and state appellate record shows that the state appellate

court reasonably concluded that the trial court’s instructions to the jury on the

conspiracy count, using the standard California instructions with minor alterations,

were not ambiguous. See 

(finding the state courts

reasonably concluded a certain jury instruction was not ambiguous where it was

“impossible to assign any meaning to th[e] instruction different from the meaning

given to it by the [state] courts”).

      Relatedly, Polina challenges the impact of the aiding and abetting jury

instruction on the conspiracy instruction as well as the prosecutor’s legal theory of

Polina’s culpability for conspiracy. The state appellate court carefully considered

this challenge on direct appeal and found no merit to the claim. Thus, we are

bound by the state appellate court’s determination that the aiding and abetting

instructions, as given by the trial court, correctly stated California law. See

; 

–72.

      As with the conspiracy instruction, even if the aiding and abetting

instructions to the jury were somehow ambiguous, Polina must still demonstrate a

“reasonable likelihood” that the instructions altered the state’s burden of proving

every element of the crime beyond a reasonable doubt. See Waddington, 

at 190–91 (quoting 

). Contrary to Polina’s contention, the

prosecutor repeatedly referred to conspiracy and aiding and abetting as alternative

theories of criminal liability during closing argument, not as a combined theory.

Thus, there is no basis to find that the instructions altered the state’s burden in this

case. See

is unsupported by the record, Polina has not

met the burden of showing that there was a “reasonable likelihood” that the jury

applied the instructions in a way that altered the state’s burden of proving every

element of the crime beyond a reasonable doubt. See

result of that, he

cannot show that the state appellate court’s determination was contrary to

established federal law. See

      Polina also makes a general sufficiency of the evidence challenge. Polina

disagrees with the state appellate court’s finding that circumstantial evidence

supported his involvement in the conspiracy to murder Ortiz. Evidence is

sufficient to support a conviction if, “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 v. Virginia,

, 319 (1979) (citing Johnson v. Louisiana, 

, 362 (1972)).

Under Jackson, the question to ask about a jury’s finding is whether it was “so

insupportable as to fall below the threshold of bare rationality.” Coleman v.

Johnson, 

, 656 (2012) (per curiam). “[A] federal court may not


                                            5
overturn a state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The federal court

instead may do so only if the state court decision was objectively unreasonable.”

Cavazos v. Smith, 

, 2 (2011) (per curiam) (citation and internal quotation

marks omitted). This “double dose of deference       . . . can rarely be surmounted.”

Boyer v. Belleque, 

, 964 (9th Cir. 2011).

      Further, a state court’s resolution of an insufficiency of the evidence claim is

evaluated under 28 U.S.C. § 2254(d)(1), not § 2254(d)(2). See Emery v. Clark,

, 1213–14 (9th Cir. 2011) (per curiam). Under § 2254(d)(1), the

focus of an insufficiency claim is whether the state court’s decision was contrary to

or reflected an unreasonable application of Jackson to the facts of a particular case.

v. Allen, 

, 1274–75 (9th Cir. 2005)). A reviewing

court may set aside the jury’s verdict on the ground of insufficient evidence only if

no rational trier of fact could have agreed with the jury. 

.

      Here, the state appellate court’s decision was not contrary to nor did it

reflect an unreasonable application of Jackson to the facts of a particular case. See

–14. As explained by the state appellate court, the trial

court set out the law of conspiracy under California law and explained that a

conspiracy can be proven by circumstantial evidence. The state appellate court

determined that, considering all of the evidence, including Ortiz’s testimony that


                                          6
Polina tried to cut his neck during the videotaped prison yard assault as well as

Polina’s name being “taken out of the hat,” the jury could properly infer that Polina

and his codefendants “tacitly came to a mutual understanding” to commit the crime

of murdering Ortiz. This interpretation of the law “binds a federal court sitting in

habeas corpus.” See 

. There was nothing unreasonable

about the state appellate court’s statement, nor was it an unreasonable application

of Jackson to the facts of the case. See 

–14.

2.    Polina next contends that the trial court judge erred when he refused to

declare a mistrial after co-defendant Macias slashed his counsel across the face in

front of the jury in a manner similar to the attack on Ortiz for which the three co-

defendants, Polina, Macias, and Quintero, were standing trial. Polina argues that

the jury’s witnessing of such an event was inherently prejudicial.

      A defendant in a criminal case has a Sixth Amendment right to an impartial

jury, such that jurors consider only the evidence which is presented to them in open

court. Turner v. Louisiana, 

, 472–73 (1965); Grotemeyer v. Hickman,

, 876–77 (9th Cir. 2004) (citations omitted). However, “due process

does not require a new trial every time a juror has been placed in a potentially

compromising situation.” Smith v. Phillips, 

, 217 (1982). Rather,

“[d]ue process means a jury capable and willing to decide the case solely on the

evidence before it, and a trial judge ever watchful to prevent prejudicial


                                          7
occurrences and to determine the effect of such occurrences when they happen.”

established Supreme Court precedent, “[a] court

confronted with a colorable claim of juror bias must undertake an investigation of

the relevant facts and circumstances.” Dyer v. Calderon, 

, 974 (9th

Cir. 1998) (citing 28 U.S.C. § 2254(d)(3) (1994); Remmer v. United States, 

, 379 (1956); Remmer v. United States, 

, 230 (1954)). “An

informal in camera hearing may be adequate for this purpose; due process requires

only that all parties be represented, and that the investigation be reasonably

calculated to resolve the doubts raised about the juror’s impartiality.”

(citing 

; United States v. Boylan, 

, 258 (1st

Cir. 1990)). “So long as the fact-finding process is objective and reasonably

explores the issues presented, the state trial judge’s findings based on that

investigation are entitled to a presumption of correctness.”

(citing

Tinsley v. Borg, 

, 526 (9th Cir. 1990)).

      Here, the investigation and measures taken by the trial court and the review

by the state appellate were not contrary to, nor an unreasonable application of

Remmer and Smith. See Hedlund v. Ryan, 

, 574 (9th Cir. 2017)

(citing 

) (holding that where the trial judge conducts a

hearing to explore the issue of juror bias and the defendant has the opportunity to


                                           8
prove actual bias, “[t]his is the remedy prescribed by the Supreme Court”); 

–75. Further, that co-defendant Quinteros was acquitted by the

jury of the murder conspiracy count further substantiates the finding that the jury

was able to set aside the courtroom attack in their deliberations.

      Polina also contends that the courtroom attack was “inherently and

substantially likely to have influenced a juror.” He explains that even if the jurors

stated to the trial court that they were unbiased by witnessing the attack, it was a

mistake for the trial court to take them at their word under the circumstances.

      In considering this issue of prejudice to the jurors inherent in what they may

have witnessed, we have held that “implied (or presumptive) bias [] may exist in

exceptional circumstances where, for example, a prospective juror has a

relationship to the crime itself or to someone involved in a trial, or has repeatedly

lied about a material fact to get on the jury.” Fields v. Brown, 

, 766

(9th Cir. 2007) (en banc). However, there is no clearly established Supreme Court

law regarding the issue of implied bias. See 

(“There is

no clearly established law governing implied bias.”); Fields v. Woodford, 

, 1104 (9th Cir. 2002) (“The Supreme Court has never explicitly adopted (or

rejected) the doctrine of implied bias.”). For this reason, Polina’s implied bias

claim fails. See Wright v. Van Patten, 

, 126 (2008) (quoting Carey v.

Musladin, 

, 77 (2006)) (“Because our cases give no clear answer to the


                                           9
question presented . . . ‘it cannot be said that the state court unreasonabl[y]

appli[ed] clearly established Federal law.’”).

AFFIRMED.




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