NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETER M. BERGNA, 

Petitioner-Appellant, 

 v. 

JAMES BENEDETTI and ATTORNEY 

GENERAL FOR THE STATE OF 

NEVADA, 

Respondents-Appellees.

No. 16-16529 

D.C. No. 

3:10-cv-00389-RCJ-WGC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Nevada

Robert Clive Jones, District Judge, Presiding

Submitted March 14, 2018**

San Francisco, California

Before: PAEZ and IKUTA, Circuit Judges, and VITALIANO,*** District Judge.

Following a jury trial, appellant Peter Bergna was convicted in Nevada state 

 

* 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 Eric N. Vitaliano, United States District Judge for the 

Eastern District of New York, sitting by designation.

FILED

MAY 3 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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court of murdering his wife and sentenced to life in prison with the possibility of 

parole after twenty years. Bergna petitioned for a writ of habeas corpus pursuant 

to 28 U.S.C. § 2254 after procedurally defaulting on his state court remedies. The 

district court denied the writ and dismissed his petition after considering Bergna’s 

habeas application on the merits. We issued a certificate of appealability under 28 

U.S.C. § 2253.

We certified two of Bergna’s claims for review: (1) that the evidence at trial 

was not constitutionally sufficient to support the verdict; and (2) that the trial court

violated his constitutional right to an impartial jury by denying his motion for a 

change of venue. Because “appeals courts are empowered to, and in some cases 

should, reach the merits of habeas petitions if they are, on their face and without 

regard to any facts that could be developed below, clearly not meritorious despite 

an asserted procedural bar,” Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 

2002); see also Lambrix v. Singletary, 520 U.S. 518, 525 (1997), we may consider 

the merits of this petition despite Bergna’s procedural default. Because the state 

court ruled on procedural grounds without addressing the merits of either claim, 

see 28 U.S.C. § 2254(d), our review is de novo, see Chaker v. Crogan, 428 F.3d 

1215, 1221 (9th Cir. 2005).

The district court properly denied Bergna’s sufficiency of the evidence 

claim. When a habeas petitioner brings such a Jackson claim, a federal court must 
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consider the record “in the light most favorable to the prosecution” to determine 

whether “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)

(emphasis in original); see also Kyzar v. Ryan, 780 F.3d 940, 943 (9th Cir. 2015) 

(“[W]e must . . . presume that the jury resolved any evidentiary conflicts in [the 

prosecution’s] favor.”).

Bergna was convicted under N.R.S. § 200.030 of pre-meditated first degree 

murder. The jury heard testimony, inter alia, that Bergna could have avoided the 

crash that killed his wife; that it was highly unlikely that Bergna was naturally 

ejected from the vehicle before it plummeted down the cliff; that he was wearing 

several layers of clothing on the day of the incident, which suggested that Bergna 

anticipated he would need to cushion a pre-planned fall in some way; that the 

passenger side airbag had been turned to the off position; and that Bergna

confessed to the murder to a jailhouse informant. Undoubtedly, any rational juror

could have found Bergna guilty on the strength of this evidence. See Jackson, 443 

U.S. at 319. Accordingly, we conclude that his Jackson claim is meritless.

Bergna’s change of venue claim is equally meritless. When pretrial 

publicity renders it impossible to empanel an impartial jury, a change of venue is 

appropriate to preserve the defendant’s constitutional right to an impartial jury. 

See Skilling v. United States, 561 U.S. 358, 378–79 (2010); Murray v. Schriro, 882 
4

F.3d 778, 802 (9th Cir. 2018). To warrant venue change, however, the defendant 

must demonstrate either presumed or actual prejudice. See Skilling, 561 U.S. at

377. Prejudice may be presumed only when the “trial atmosphere [is] utterly 

corrupted by press coverage,” or when “public passion” renders a fair trial 

unlikely. Murray, 882 F.3d at 802 (alteration in original) (internal quotation marks

omitted). Actual prejudice, on the other hand, occurs “if, during voir dire, 

potential jurors who have been exposed to pretrial publicity express bias or 

hostility toward the defendant that cannot be cast aside.” Id. at 802–03.

Bergna failed to demonstrate to the trial court, or on his habeas application, 

the circumstances required to presume prejudice. Although Bergna submitted 66 

news articles, aside from one nationally aired television program, all of the articles 

were at least five-months old by the time of his re-trial. This level of dissipation in 

news coverage does not reveal “the barrage of inflammatory publicity immediately 

prior to trial” necessary “to warrant a presumption that the jurors selected for the 

trial of this matter were prejudiced.” Harris v. Pulley, 885 F.2d 1354, 1362 (9th 

Cir. 1988) (internal quotation marks omitted). Moreover, a review of those articles

makes plain that they were largely factual in nature. This record does not support a 

presumption of prejudice. See Skilling, 561 U.S. at 382–84.

Nor has Bergna shown actual prejudice. To the extent that his arguments 

raised issues with the venire pool, Bergna did not show that the jurors exhibited 
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bias or hostility towards him. To the contrary, the jurors stated during voir dire 

either that they would be fair and impartial despite media coverage or that they had 

not viewed any such coverage at all. Accordingly, we conclude that the trial 

court’s denial of a venue change did not violate Bergna’s constitutional right to an 

impartial jury. See Skilling, 561 U.S. at 390–92. 

AFFIRMED.