NOT FOR PUBLICATION FILED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, 745 F.3d 984, 996 (9th Cir. 2014) (citing Lopez v. Thompson,
202 F.3d 1110, 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reasoned state court opinion, here the California Court of Appeal’s unpublished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 id. (citing Barker v. Fleming, 423 F.3d
1085, 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, 546
U.S. 74, 76 (2005). This applies to challenges to the state court’s jury instructions.
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Estelle v. McGuire, 502 U.S. 62, 71–72 (1991) (citing Marshall v. Lonberger, 459
U.S. 422, 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 Bradshaw, 546 U.S.
at 76; McGuire, 502 U.S. at 71–72 (citing Lonberger, 459 U.S. at 438, 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, 555 U.S. 179, 190–91 (2009)
(quoting McGuire, 502 U.S. at 72). The relevant question “is ‘whether the ailing
instruction by itself so infected the entire trial that the resulting conviction violates
due process.’” Id. at 191 (quoting McGuire, 502 U.S. at 72). 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.”
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Middleton v. McNeil, 541 U.S. 433, 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 Waddington, 555 U.S. at 191 (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
Bradshaw, 546 U.S. at 76; McGuire, 502 U.S. at 71–72.
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, 555 U.S.
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at 190–91 (quoting McGuire, 502 U.S. at 72). 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 id. Because this challenge 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 id. And as a result of that, he
cannot show that the state appellate court’s determination was contrary to
established federal law. See id. at 191, 197.
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,
443 U.S. 307, 319 (1979) (citing Johnson v. Louisiana, 406 U.S. 356, 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, 566 U.S. 650, 656 (2012) (per curiam). “[A] federal court may not
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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, 565 U.S. 1, 2 (2011) (per curiam) (citation and internal quotation
marks omitted). This “double dose of deference . . . can rarely be surmounted.”
Boyer v. Belleque, 659 F.3d 957, 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,
643 F.3d 1210, 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.
Id. (citing Juan H. v. Allen, 408 F.3d 1262, 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. Cavazos, 565 U.S. at 2.
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
Emery, 643 F.3d at 1213–14. 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
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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 Bradshaw, 546 U.S. at 76. 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 Emery, 643 F.3d at 1213–14.
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, 379 U.S. 466, 472–73 (1965); Grotemeyer v. Hickman,
393 F.3d 871, 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, 455 U.S. 209, 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
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occurrences and to determine the effect of such occurrences when they happen.”
Id.
Pursuant to clearly 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, 151 F.3d 970, 974 (9th
Cir. 1998) (citing 28 U.S.C. § 2254(d)(3) (1994); Remmer v. United States, 350
U.S. 377, 379 (1956); Remmer v. United States, 347 U.S. 227, 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.” Id. at 974–
75 (citing Smith, 455 U.S. at 217; United States v. Boylan, 898 F.2d 230, 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.” Id. at 975 (citing
Tinsley v. Borg, 895 F.2d 520, 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, 854 F.3d 557, 574 (9th Cir. 2017)
(citing Smith, 455 U.S. at 215) (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”); Dyer,
151 F.3d at 974–75. 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, 503 F.3d 755, 766
(9th Cir. 2007) (en banc). However, there is no clearly established Supreme Court
law regarding the issue of implied bias. See Hedlund, 854 F.3d at 575 (“There is
no clearly established law governing implied bias.”); Fields v. Woodford, 309 F.3d
1095, 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, 552 U.S. 120, 126 (2008) (quoting Carey v.
Musladin, 549 U.S. 70, 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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