NOT FOR PUBLICATION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.