                             NOT FOR PUBLICATION                             FILED
                     UNITED STATES COURT OF APPEALS                           FEB 4 2019
                                                                         MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

AHKIN RAYMOND MILLS,                               No.   17-17197

                 Petitioner-Appellant,             D.C. No. 5:14-cv-00255-LHK

  v.
                                                   MEMORANDUM*
GARY SWARTHOUT, Warden,

                 Respondent-Appellee.

                    Appeal from the United States District Court
                      for the Northern District of California
                      Lucy H. Koh, District Judge, Presiding

                     Argued and Submitted December 20, 2018
                             San Francisco, California

Before: BOGGS,** PAEZ, and OWENS, Circuit Judges.

       Petitioner-Appellant Ahkin Raymond Mills shot and killed a stranger at a

train station, and after a jury trial in state court, he was convicted of first-degree

murder. The California Supreme Court unanimously affirmed his conviction.




       *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
People v. Mills, 286 P.3d 754 (Cal. 2012).1 He then petitioned for a writ of habeas

corpus. See 28 U.S.C. § 2254. The district court denied his petition. We affirm.

      We review the district court’s decision de novo. Lopez v. Thompson, 202

F.3d 1110, 1116 (9th Cir. 2000) (en banc). To obtain habeas relief, Mills must

show that the California Supreme Court’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). He cannot clear this

high bar.

      Mills challenges one jury instruction from the guilt phase of his bifurcated

trial2 as a violation of due process. The trial court instructed the jury that, “[f]or the

purpose of reaching a verdict in the guilt phase of this trial, you are to conclusively

presume that the defendant was legally sane at the time the offenses [are] alleged

to have occurred.” Mills, 286 P.3d at 763 n.10. The California Supreme Court

unanimously rejected Mills’s claim that this instruction unconstitutionally “told the

jury to presume the existence of a mental state critical to the state’s burden of

proof” and to disregard mental-health evidence relevant to his defense theory. Id.

at 756.



1
  The California Supreme Court’s opinion details the facts and state-court
procedural history. Id. at 756–57.
2
  Because he raised an insanity defense, his trial was split into guilt and sanity
phases. See Cal. Penal Code § 1026(a).

                                            2                                      17-17197
      Mills now argues that the California Supreme Court evaluated his due-

process claim under the wrong standard, and that it improperly relied on the other

guilt-phase jury instructions and on Middleton v. McNeil, 541 U.S. 433 (2004). He

also contends that our decisions in Hall v. Haws, 861 F.3d 977 (9th Cir. 2017),

Stark v. Hickman, 455 F.3d 1070 (9th Cir. 2006), and Patterson v. Gomez, 223

F.3d 959 (9th Cir. 2000), compel us to grant him habeas relief. We disagree.

      First, the California Supreme Court evaluated Mills’s due-process claim

under the correct standard. In Boyde v. California, the United States Supreme

Court held that when a defendant claims that “a single jury instruction . . . is

ambiguous and therefore subject to an erroneous interpretation . . . the proper

inquiry . . . is whether there is a reasonable likelihood that the jury has applied the

challenged instruction in a way that prevents the consideration of constitutionally

relevant evidence.” 494 U.S. 370, 380 (1990). The California Supreme Court used

this reasonable-likelihood standard. Mills, 286 P.3d at 763. Mills relies on pre-

Boyde cases applying a distinct “reasonable juror” test, but Boyde supplanted this

earlier standard. Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991) (explaining that

Boyde “made it a point to settle on a single standard of review for jury

instructions—the ‘reasonable likelihood’ standard”).

      Second, the California Supreme Court did not unreasonably apply federal

law by relying on the other guilt-phase jury instructions and on the United States


                                           3                                       17-17197
Supreme Court’s decision in Middleton. Since Boyde, the Court has repeatedly

decided constitutional challenges to a single jury instruction by looking at all of the

instructions together, not the challenged instruction in isolation. See, e.g.,

Middleton, 541 U.S. at 438 (“Given three correct instructions and one contrary

one, the state court did not unreasonably apply federal law when it found that there

was no reasonable likelihood the jury was misled.”). See also Ayers v. Belmontes,

549 U.S. 7, 19 (2006); Brown v. Payton, 544 U.S. 133, 146–47 (2005).

      As for Middleton, Mills is right that the challenged instruction in that case is

not comparable to the one here, but the California Supreme Court did not conflate

the substance of the two instructions. It cited Middleton only for the

methodology—analyzing the challenged jury instruction in light of the other

instructions and the closing arguments. Mills, 286 P.3d at 764–65. Thus, the

California Supreme Court did not err, much less unreasonably apply federal law.

      Third, our decisions in Hall, Stark, and Patterson do not require us to grant

Mills’s petition. Hall is not germane to this case, as it involved a different kind of

jury instruction that is not evaluated under the Boyde test. 861 F.3d at 989–94.

Stark and Patterson are more relevant: Like this case, both involved California

murder convictions after bifurcated trials, presumption-of-sanity jury instructions,

and mental-health evidence (which the defendants feared the jury would wrongly

disregard because of the challenged instructions). We granted habeas relief in both


                                           4                                     17-17197
cases. Stark, 455 F.3d at 1078–80; Patterson, 223 F.3d at 966–68.

      But they do not require the same result here, primarily because of an

important difference in the language of the challenged instructions. In Stark and

Patterson, the instructions were to presume the defendant was “sane” at the time of

the offense, but here, the instruction was to presume Mills was “legally sane.”

Compare Stark, 455 F.3d at 1075, and Patterson, 223 F.3d at 964, with Mills, 286

P.3d at 763 n.10 (emphasis added). The instructions’ use of “sane” instead of

“legally sane” was central to our analysis in Stark and Patterson. Stark, 455 F.3d at

1078 (finding a due-process violation in part because the jury was not “warned that

‘sane’ was being used in a manner other than the conventional lay sense”);

Patterson, 223 F.3d at 966 (explaining that “if a jury is instructed that a defendant

must be presumed ‘sane’ . . . a reasonable juror could well conclude that he or she

must presume that the defendant had no . . . mental disease, defect, or disorder”).

      Here, by using the phrase “legally sane,” the trial court warned the jury that

“sane” was not being used in its conventional lay sense. The insertion of “legally”

reduced the risk of the jury misinterpreting the challenged instruction and

disregarding Mills’s mental-state evidence. In addition, Mills’s guilt-stage theory

of imperfect self-defense relied less on mental-health evidence than the theories in

Stark and Patterson. See Mills, 286 P.3d at 763; Stark, 455 F.3d at 1075;

Patterson, 223 F.3d at 965. For both of these reasons, Mills’s jury was less likely


                                          5                                    17-17197
to apply the challenged instruction in an unconstitutional way than the juries in

Stark and Patterson, and those cases do not control.

      Thus, we AFFIRM the district court’s denial of Mills’s § 2254 petition.




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