Moises Hernandez v. Gerald Janda

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 29 2014

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

MOISES HERNANDEZ, No. 11-55581

Petitioner - Appellant, D.C. No. 2:10-cv-02812-JHN-
DTB
v.

GERALD J. JANDA, Warden, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court
for the Central District of California
Jacqueline H. Nguyen, District Judge, Presiding

Argued and Submitted May 12, 2014
Pasadena, California

Before: NOONAN, WARDLAW, and FISHER, Circuit Judges.

Moises Hernandez appeals the district court’s denial of his petition for a writ

of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.

The district court did not err in denying the petition. The California Court of

Appeal adjudicated Hernandez’s federal constitutional claim on the merits. Its

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
decision was not contrary to, or an unreasonable application of, clearly established

federal law as determined by the Supreme Court of the United States. 28 U.S.C. §

2254(d)(1). Neither Hicks v. Oklahoma, 447 U.S. 343 (1980), nor any other

Supreme Court decision clearly establishes that Hernandez has a constitutionally

protected liberty interest in the state law instruction that the jury deliberate anew

after an alternate juror is seated during deliberations. Though Cal. Penal Code §

1089 requires such an instruction as a matter of state law, the federal Due Process

Clause “safeguards not the meticulous observance of state procedural prescriptions,

but the fundamental elements of fairness in a criminal trial.” Rivera v. Illinois, 556

U.S. 148, 158 (2009) (internal quotation marks omitted).

AFFIRMED.