                                                                              FILED
                             NOT FOR PUBLICATION
                                                                               DEC 09 2015
                     UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS


                             FOR THE NINTH CIRCUIT


JORGE A. RICO,                                     No. 14-15657

               Petitioner - Appellant,             D.C. No. 3:12-cv-06127-EMC

 v.
                                                   MEMORANDUM*
CLARK E. DUCART, Acting Warden,

               Respondent - Appellee.


                     Appeal from the United States District Court
                       for the Northern District of California
                     Edward M. Chen, District Judge, Presiding

                     Argued and Submitted November 16, 2015
                             San Francisco, California

Before: O’SCANNLAIN and M. SMITH, Circuit Judges, and MORRIS,** District
Judge.

      Jorge Rico appeals the denial of his petition for a writ of habeas corpus. Rico

argues that extrinsic evidence contributed to the jury’s verdict against him, that the

trial court deprived him of counsel at a critical stage of his trial, and that he was

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Brian M. Morris, District Judge for the U.S. District
Court for the District of Montana, sitting by designation.
entitled to an evidentiary hearing in the district court. We have jurisdiction under

28 U.S.C. § 2253, and we affirm.

      1. Rico is not entitled to habeas relief on his extrinsic-evidence claim. Rico

argues that under Smith v. Phillips, 455 U.S. 209, 215 (1982), he was entitled to an

evidentiary hearing in the state courts and that absent such a hearing, the state

courts’ fact-finding process was unreasonable. See 28 U.S.C. § 2254(d)(2). But the

trial court did hold a hearing, at which Rico’s co-defendant’s counsel presented

evidence of juror bias and requested a second evidentiary hearing. The trial court

considered the evidence presented, weighed it against the other evidence in the

case, and determined that there was no reasonable likelihood of actual prejudice.

The hearing held by the trial court may not have been to Rico’s satisfaction, but it

was not an unreasonable determination of the facts.1 Cf. Hibbler v. Benedetti, 693

F.3d 1140, 1147 (9th Cir. 2012).

      Nor was the state appellate court’s analysis of Rico’s extrinsic-evidence

claim unreasonable under § 2254(d)(1). The state court cited the correct federal

standard: that “[t]he government has the burden of showing beyond a reasonable

doubt that extrinsic evidence did not contribute to the verdict.” See Xiong v. Felker,



      1
       In any case, Rico was able to submit additional evidence, such as a sworn
declaration from the jury foreperson, with his state habeas petition.
                                           2
681 F.3d 1067, 1077 (9th Cir. 2012); United States v. Keating, 147 F.3d 895, 902

(9th Cir. 1998). It then observed that the jury was properly presented with evidence

that Rico was an active gang member and had previously been convicted for a

violent gang-related felony. Moreover, before deliberations, the trial court

admonished the jury not to consider Rico’s prior conviction for any purpose other

than to prove his felon-in-possession charge. The state court concluded from these

facts that, beyond a reasonable doubt, the sole additional detail in the extrinsic

evidence—that Rico’s prior conviction was for assault with a deadly weapon—did

not contribute to the jury’s verdict.2 This conclusion was not unreasonable.

      2. In his opening brief before this court, Rico argues that by failing to alert

his attorney when the jury asked for instructions regarding the verdict form, the

trial court deprived him of counsel at a critical stage in violation of his Sixth

Amendment right to a fair trial. Whether or not he is correct, cf. Musladin v.

Lamarque, 555 F.3d 830, 842-43 (9th Cir. 2009), Rico is not entitled to relief

because he failed to exhaust his state remedies. See 28 U.S.C. § 2254(b)(1)(A).


      2
        The state court did not cite and apply the ten-factor test this Court has
previously enunciated to determine whether extrinsic evidence was harmless, see
Sassounian v. Roe, 230 F.3d 1097, 1109 (9th Cir. 2000), but those factors are not
“clearly established Federal law, as determined by the Supreme Court.” See
§ 2254(d); Renico v. Lett, 559 U.S. 766, 779 (2010) (holding that a state court was
not obligated to employ a three-part test enunciated by the circuit court, because
those factors were not clearly established by Supreme Court precedent).
                                            3
      Although Rico has consistently provided the operative facts underlying his

claim, he failed to “describe in the state proceedings . . . the federal legal theory on

which his claim is based.” See Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir. 2008)

(quoting Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003)). In his state appeal

and state habeas petitions, Rico neither asserted that he was deprived of counsel at

a critical stage nor cited any authority relevant to such claims. He argued only that

he was prejudiced by the extrinsic evidence. Rico therefore forfeited his

deprivation-of-counsel claim.

      3. Rico also appeals the district court’s decision not to hold an evidentiary

hearing on his habeas petition. We review for an abuse of discretion. See Williams

v. Woodford, 384 F.3d 567, 590 (9th Cir. 2002). Rico sought an evidentiary

hearing from the California Court of Appeal and did not receive one, and therefore

he was entitled to an evidentiary hearing on federal habeas review if he alleged

facts that, if proven, would entitle him to relief. See Perez v. Rosario, 459 F.3d

943, 954 n.5 (9th Cir. 2006) (quoting Horton v. Mayle, 408 F.3d 570, 582 n.6 (9th

Cir. 2005)). Rico alleged no facts whatsoever. The district court therefore did not

abuse its discretion in denying him an evidentiary hearing.

      AFFIRMED.




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