NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RYAN J. BLACK, Petitioner

- Appellant,

v. AMY MILLER, Warden, Respondent

- Appellee. No. 13

- 57103
D.C. No. 2:12

- cv - 10875

- PSG

- E

MEMORANDUM *

Appeal from the U nited States District Court for the Central District of California Philip S. Gutierrez, District Judge, Presiding Argued and Submitted January 9, 2017 Pasadena, California Before: TALLMAN and FRIEDLAND, Circuit Judges, and FABER, * * Senior District Judge

. Petitioner Ryan J. Black appeals the denial of his petitio n for a writ of habeas corpus, alleging he received inadequate notice of the aider and abettor theory advanced by the prosecution at trial. He also brings an uncertified issue,

* This disposition is not appropriate for publication and is not precedent excep t as provided by Ninth Circuit Rule 36

- 3.

** The Honorable David A. Faber, Senior United States District Judge 

# FILED

FEB 7 2017 MOLLY C. DWYER, CLER K

U.S. COURT OF APPEAL S2 alleging that i nsufficient evidence supported his conviction as an aider and abettor. We affirm in the entirety the district court’s denial of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

. See 28 U.S.C. § 2254(d)(1)

— (2) (statin g that a federal court may not grant an application for writ of habeas corpus on behalf of a person in state custody with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim: (1) “resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States” or (2) “resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” ) ; see also Kernan v. Hinojosa , 136 S. Ct. 1603, 1604 (2016); Woodford v. Visciotti , 537 U.S. 19, 24

— 26 (2002); Early v. Packer , 537 U.S. 3, 8 (2002); Williams v. Taylor , 529 U.S. 362 , 405

— 09 (2000). First , we hold that Petitioner receive d adequate notice of the charges against him as an aider and abettor. Consequently, Petitioner’s Sixth Amendment and due process right to exercise a meaningful opportunity to prepare an adequate def ense on the aider and abettor theory was not violated. As an initial matter, under California law, “an instrument charging a defendant as a principal is deemed to

for the Southern District of West Virginia, sitting by designation.3 charge him as an aider and abettor as well.” People v. Quiroz , 215 Cal. App. 4th 65, 70 (20 13); see also Cal. Penal Code § 971. Additionally, evidence was presented at the preliminary hearing suggesting that Petitioner had been seen driving the car from which the shot s were fired. See R.T. 322

- 26, 414

- 15; C.T. 24

- 28. Moreover, witnesses “Carl os, Roberto and Luis all testified at trial that they previously had seen Petitioner driving the car, and Petitioner’s father testified Petitioner had access to the car.” Black v. Miller , No. CV 12

- 10875

- PSG(E), 2013 U.S. Dist. LEXIS 161342, at *39 (C.D. Cal. Sept. 17, 2013). Accordingly, “[t]hese sources gave sufficient notice that Petitioner could be held liable as an aider and abettor.” Id

. Further , Sheppard v. Rees , 909 F.2d 1234 (9th Cir. 1990), is in apposite to this case. T he AEDPA standard of r eview allows us to grant relief only on the basis of United States Supreme Court precedents, and Sheppard is a Ninth Circuit

case that predates the AEDPA

. See Lopez v. Smith , 135 S. Ct. 1 , 3

— 4 (2014) ; Marshall v. Rodgers , 133 S. Ct. 1446, 1450 (2013). Ev en more , this case presents

ma terially different facts than Sheppard . There, the court held that the petitioner did not receive constitutionally adequate notice of the pros ecution’s felony murder theory because that theory was advanced for the first time after both sides had rested and after jury instructions had been settled. Sheppard , 909 F.2d at 1237 ; see also Morrison v. Estelle , 981 F.2d 425, 428 (9th Cir. 1992) (characterizing4 Sheppard ’s holding as “narrow”) . Here, however , evidence was presented

s uggesting that Black was the driver, and California law clearly maintain s that a defendant may be convicted on both principal and aider and abettor theories. Thus, Petitioner’s arguments on the inadequate

- notice claim for the purpose of seeking habeas rel ief are unavailing. Second , as to the u ncertified i ssue , Petitioner moved to expand the
Cert ificate of Appealability (COA) to include a challenge to the sufficiency of the evi dence underlying his conviction

. 28 U.S.C. §2253(c)(2). Since Petitioner has
not ma d e a “substantial showing ” that a constitutional right has been denied to him, we decline to expand the COA to include the uncertified issue. Petitioner has not crossed the threshold of demonstrating that hi s aiding and abetti ng conviction is un sup ported by sufficient evidence that proves his guilt beyond a reasonable doubt. “[D]eterminations of credibility and demeanor lie peculiarly within a trial judge’s province ” and , “in the absence of exceptional circumstances, [the federal courts shall] defe r to the trial court” on federal habeas review. Snyder v. Louisiana , 552 U.S. 472, 477 (2008) (alterations and internal quotation marks omitted). It is up to the trial court to “resolve[] the conflicts, ma[k]e the inferences, or consider[] the evidence a t trial .” United States v. Nevils , 598 F.3d 1158, 1164 (9th Cir. 2010) ( en banc ) (emphasis added). A trial court can5 rely on “[c]ircumstantial evidence and inferences drawn from it.” Ngo v. Giurbino , 651 F.3d 1112, 1114 (9th Cir. 2011). In this challeng e, Petitioner asks us to overturn the Los Angeles County Superior Court’s finding , following a bench trial, that Petitioner was present

— either as an aider or abettor or as a principal

— i n the vehicle from which shots were fired

. The state trial court judge found Roberto to be a credible witness, and believed his testimony that he saw Petitioner in the car

— an identification that the trial court believed was particularly reliable because Roberto was already familiar with Petitioner from contact in the neighbo rhood prior to the incident. The trial court also found that there were only two passengers in the car. W e are in no position to “usurp” the role of the trier of fact in this case , Nevils , 598 F.3d at 1164 , and, therefore, we cannot say that Petitioner ha s ma d e a “substantial showing ” that a constitutional right has been denied to him

. 28 U.S.C. §2253(c)(2). 1 We deny the motion to expand the COA on this issue. AFFIRMED

.

1 Since this determination

— no constitutional right was violated

— resolves the COA question, we do not decide whether any such purported right could be vindicated under the AEDPA’s § 2254(d)(1)

– (2) strictures

.