                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         APR 24 2019
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

MICHAEL THOMAS BALINT,                            No.   17-55576

                Petitioner-Appellant,             D.C. No.
                                                  2:11-cv-06307-BRO-PLA
 v.

KELLY SANTORO, Acting Warden,                     MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                 Beverly Reid O'Connell, District Judge, Presiding

                        Argued and Submitted April 10, 2019
                               Pasadena, California

Before: PAEZ and CLIFTON, Circuit Judges, and KATZMANN,** Judge.

      Michael Balint appeals the district court’s denial of his federal habeas

petition. The district court issued a certificate of appealability on two issues: (1)

whether Balint was denied counsel and presence at a critical stage of the trial

(Ground One) and (2) whether the trial court erred in responding to a question


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
from the jury (Ground Two). We have jurisdiction under 28 U.S.C. §§ 1291 and

2253, and we affirm.

      1. We review de novo the district court’s denial of a petition for habeas

relief. Henry v. Ryan, 720 F.3d 1073, 1078 (9th Cir. 2013). Findings of fact are

reviewed for clear error. Id. As the state court did not decide Ground One on the

merits, section 2245(d) of the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”) does not apply. See Cullen v. Pinholster, 563 U.S. 170, 186

(2011).

      In Ground One, Balint argues he was denied his right to be present and the

right to counsel at a critical stage of the trial when the trial court responded to the

jury’s question. The district court concluded this claim was procedurally defaulted

under California’s Dixon procedural bar.1

       Balint argues that Dixon’s procedural bar is inapposite because he could not

have raised this claim on direct appeal. The parties agree, however, that the trial

record does not reflect that there were discussions between the trial judge and

defense counsel regarding the jury’s question. Thus, Balint could have raised this

claim on direct appeal.



1
 Dixon holds that in the absence of special circumstances, habeas relief is barred
“where the claimed errors could have been, but were not, raised upon a timely
appeal from a judgment of conviction.” Ex parte Dixon, 264 P.2d 513, 514 (Cal.
1953).

                                            2
      Balint also argues that this claim is not procedurally defaulted because the

California Supreme Court’s order cites mutually inconsistent procedural bars. Not

so. The California Supreme Court’s order denying relief “clearly and expressly

state[d] that its judgment rests on a state procedural bar.” Harris v. Reed, 489 U.S.

255, 263 (1989). Although the California Supreme Court cited both the Dixon and

Clark procedural bars, these rules are not inconsistent.2 The district court correctly

interpreted the order as signifying that Balint “could have raised the claim on direct

appeal (Dixon), and in any event he also improperly raised the claim in a

successive habeas application (Clark).” Moreover, as Balint did not raise multiple

claims in his June 2013 California Supreme Court petition, there is no confusion as

to which claim the bars apply. Cf. Calderon v. United States District Court

(Bean), 96 F.3d 1126, 1131 (9th Cir. 1996) (concluding that the California

Supreme Court’s order was ambiguous because it did not “specify which of

[petitioner’s] thirty nine-claims the court rejected under [one cited state doctrine],

and which it rejected under [another cited state doctrine]”).

      Balint argues that even if this claim is defaulted, he has demonstrated cause

and prejudice to excuse any procedural default because his appellate counsel was


2
  Clark holds that “the court will not consider repeated applications for habeas
corpus presenting claims previously rejected” and that the “court has also refused
to consider newly presented grounds for relief which were known to the petitioner
at the time of a prior collateral attack on the judgment.” In re Clark, 855 P.2d 729,
740 (Cal. 1993).

                                           3
ineffective for failing to raise Ground One on direct appeal and that he was

prejudiced by his counsel’s deficient performance. Ineffective assistance of

appellate counsel is evaluated under the Strickland standard. See Smith v. Murray,

477 U.S. 527, 535–36 (1986). Under Strickland, a defendant must show that (1)

counsel’s performance was deficient and (2) that the deficient performance

prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). To

show prejudice, “[t]he defendant must show that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694.

        Even assuming Balint’s ineffective assistance of appellate counsel claim is

exhausted, Balint cannot show prejudice. The California Court of Appeal

concluded that even if Balint had objected to the trial court’s response to the jury’s

question, the response was “a correct statement of law that could not have misled

the jury and is not grounds for reversal.” We see no error in this conclusion.

Because Balint cannot show prejudice, he cannot overcome California’s Dixon

rule.

        Finally, Balint argues that even if the procedural default is not excused by

cause and prejudice, failure to consider Ground One on the merits would result in a

fundamental miscarriage of justice. To obtain review, he “must show that it is

more likely than not that no reasonable juror would have convicted him in the light


                                           4
of [] new evidence.” Lee v. Lampert, 653 F.3d 929, 938 (9th Cir. 2011) (internal

quotation marks and citation omitted). “This exacting standard permits review

only in the extraordinary case, but it does not require absolute certainty about the

petitioner’s guilt or innocence.” Id. (internal quotation marks and citation

omitted).

        Balint argues that he has provided new evidence of constitutional error

through his declaration that he was not present when the trial judge formulated an

answer to the jury’s question. Nonetheless, he fails to demonstrate how, in light of

the declaration, it is more likely than not that no reasonable juror would have

convicted him.

      Therefore, we affirm the district court’s judgment that Ground One is

procedurally barred under California’s Dixon rule.

      2. Because Balint filed his petition after April 24, 1996, his claim in Ground

Two is governed by AEDPA. See Lindh v. Murphy, 521 U.S. 320, 336 (1997).

AEDPA “bars relitigation of any claim adjudicated on the merits in state court,

subject only to the exceptions in §§ 2254(d)(1) and (2).” Harrington v. Richter,

562 U.S. 86, 98 (2011) (internal quotation marks omitted). These exceptions

require a petitioner to show that the prior litigation either “(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)


                                           5
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.” Id. at 97–98

(citing 28 U.S.C. § 2254(d)).

       In Ground Two, Balint argues that the trial court erred in responding to the

jury’s question without clearing up the instructional confusion expressed by the

jury. He contends that the California Court of Appeal’s decision was an

unreasonable application of Bollenbach v. United States, 326 U.S. 607, 608

(1946).3 The California Court of Appeal’s decision on this issue was not an

unreasonable application of clearly established federal law as determined by the

United States Supreme Court in Bollenbach.

       He also argues that the California Court of Appeal’s determination was an

unreasonable determination of the facts. The California Court of Appeal did not

make a factual determination, but rather reached a legal conclusion that there was

no reasonable likelihood that the jury conflated the two separate instructions into

one.

       AFFIRMED.




3
 Bollenbach states that “[w]hen a jury makes explicit its difficulties a trial judge
should clear them away with concrete accuracy.” Bollenbach, 326 U.S. at 612–13.

                                          6
