NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERONIMO POLINA, 

Petitioner-Appellant, 

 v. 

W. L. MONTGOMERY, Acting Warden; 

XAVIER BECCERA, 

Respondents-Appellees.

No. 18-56166 

D.C. No. 

3:16-cv-02133-WQH-RNB 

MEMORANDUM*

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.

FILED

OCT 21 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
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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reasoned state court opinion, here the California Court of Appeal’s unpublished 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. 
3 

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 codefendants, 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 
9 

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 
10 

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

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

AFFIRMED.