                            NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                          JUN 10 2020
                                                                       MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

DAVID DEL TORO,                                  No.    18-56421

                Petitioner-Appellant,            D.C. No.
                                                 2:16-cv-03624-RSWL-RAO
 v.

RAYMOND MADDEN, Warden, Centinela                MEMORANDUM*
State Prison,

                Respondent-Appellee.

                    Appeal from the United States District Court
                       for the Central District of California
                    Ronald S.W. Lew, District Judge, Presiding

                        Argued and Submitted April 3, 2020
                               Pasadena, California

Before: PAEZ and CALLAHAN, Circuit Judges, and LYNN,** District Judge.

             David Del Toro (“Del Toro”), a California prisoner convicted of

murder, appeals the district court’s denial of his petition for habeas relief under 28

U.S.C. § 2254. Del Toro argues that the jury’s consideration of erroneous extrinsic



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Barbara M. G. Lynn, United States Chief District
Judge for the Northern District of Texas, sitting by designation.
information concerning the maximum sentence for manslaughter violated his

constitutional rights and prejudiced the jury in favor of a murder verdict. We have

jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review de novo the district

court’s dismissal of Del Toro’s § 2254 petition and affirm. Murray v. Schriro, 882

F.3d 778, 801 (9th Cir. 2018).

      On habeas review of a state court’s affirmance of a criminal conviction, 28

U.S.C. § 2254(d) constitutes a “threshold restriction” on federal habeas corpus

relief. Renico v. Lett, 559 U.S. 766, 773 n.1 (2010). Section 2254(d) “bars

relitigation of any claim ‘adjudicated on the merits’ in state court,” subject to only

two exceptions. Harrington v. Richter, 562 U.S. 86, 98 (2011). These exceptions

require a petitioner to show that the state court’s adjudication of the claim either

(1) 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) was “based on an unreasonable determination of the facts in light of the

evidence presented at the State Court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

Moreover, the petitioner must demonstrate “a reasonable probability” that the jury

would have reached a verdict less than murder but for the error. Clark v. Brown,

450 F.3d 898, 916 (9th Cir. 2006).




                                           2
      We consider whether these exceptions apply by looking to the last reasoned

state-court decision. Murray, 745 F.3d at 996. Here, that would be the California

Court of Appeal’s decision affirming Del Toro’s conviction.

      Del Toro has not made the requisite showing of prejudice for relief. Even

assuming the court based its decision on an unreasonable determination of the facts

or failed to apply the presumption of prejudice mandated by the Supreme Court’s

decisions in Remmer v. United States, 347 U.S. 227 (1954) and Mattox v. United

States, 146 U.S. 140 (1892), Del Toro has failed to establish “a reasonable

probability” that the jury would have reached a verdict less than murder but for the

misconduct, Clark, 450 F.3d at 916.

      Indeed, the evidence presented at trial indicated that Del Toro committed

murder, not manslaughter. The state’s expert partially attributed Flores’s death to

strangulation, permitting a reasonable inference that Del Toro premeditated her

killing. Schad v. Ryan, 671 F.3d 708, 717–18 (9th Cir. 2011), overruled on other

grounds by McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 2015). A portion of

rope found near Flores’s body “matched” the rope found in Del Toro’s driveway

and the police recovered a rope-tying manual in his living room. Other evidence

indicated that Del Toro had made several inept attempts to cover up the killing,

partially hosing down his truck and placing his blood-stained clothing in a plastic

bag for disposal. And critically, Del Toro himself testified that he had not killed


                                          3
Flores at all, not that he had done so under circumstances constituting

manslaughter rather than murder.

      For these reasons, Del Toro has not met his burden of demonstrating that the

jury’s misconduct “‘had substantial and injurious effect or influence in determining

the jury’s verdict.’” Kirkpatrick v. Chappell, 950 F.3d 1118, 1128 (9th Cir. 2020)

(quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

      AFFIRMED.




                                         4
