                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 12 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


THOMAS ARTHUR APPLEGATE,                         No. 12-17401

              Petitioner - Appellant,            D.C. No. 5:10-cv-04774-EJD

  v.
                                                 MEMORANDUM*
KATHLEEN DICKENSON,

              Respondent - Appellee.


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

                          Submitted December 10, 2014**
                             San Francisco, California

Before: O’SCANNLAIN, N.R. SMITH, and HURWITZ, Circuit Judges.

       Thomas Arthur Applegate appeals the district court’s September 24, 2012

denial of his petition for habeas corpus. We affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), federal courts must refuse to grant habeas relief unless the last

reasoned state court decision was (1) “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.” 28 U.S.C. § 2254(d). Neither party has claimed that the

last reasoned state court decision in this case, the decision of the California Court

of Appeal, was “based on an unreasonable determination of the facts.” 28 U.S.C. §

2254(d)(2). Therefore, the only question before us is whether the California Court

of Appeal’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).

      The Supreme Court has established that incorrect or vague jury instructions

are grounds for habeas relief only if the error “so infected the entire trial that the

resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72

(1991) (internal quotation marks omitted). Due process is violated when there is a

“reasonable likelihood that the jury has applied the challenged instruction in a way

that violates the Constitution.” Id. (internal quotation marks omitted). “[N]ot


                                            2
every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level

of a due process violation.” Middleton v. McNeil, 541 U.S. 433, 437 (2004).

Rather, the challenged instruction must be evaluated in context. Estelle, 502 U.S.

at 72. The Supreme Court explained:

             Analysis must focus initially on the specific language
             challenged, but the inquiry does not end there. If a
             specific portion of the jury charge, considered in
             isolation, could reasonably have been understood as
             creating a presumption that relieves the State of its
             burden of persuasion on an element of an offense, the
             potentially offending words must be considered in the
             context of the charge as a whole. Other instructions
             might explain the particular infirm language to the extent
             that a reasonable juror could not have considered the
             charge to have created an unconstitutional presumption.

Francis v. Franklin, 471 U.S. 307, 315 (1985) (emphasis added).

      The Court of Appeal’s application of Supreme Court precedent was not

unreasonable. The court looked not only at the challenged instruction, but also at

the instructions as a whole. The court then, as mandated by Estelle, examined

whether there was a reasonable likelihood that the jury had applied the challenged

instruction in a way that violates the Constitution. Considering whether “[o]ther

instructions might explain the particular infirm language to the extent that a

reasonable juror could not have considered the charge to have created an

unconstitutional presumption,” see Francis, 471 U.S. at 315, the court concluded:


                                           3
             [although] the portion of CALCRIM No. 3450 . . . “could
             be misleading” in isolation, the parties do not dispute that
             the remaining instructions accurately stated the law on
             insanity. The instructions made clear that “[r]egardless
             of its duration, legal insanity which existed at the time of
             the commission of the crime is a defense to the crime.”
             [CALJIC No. 4.03.] Considering the charge to the jury
             in its entirety, we conclude that no reasonable juror
             would have misconstrued the instructions.

People v. Applegate, No. A118980, 2009 WL 1611724, at *7 (Cal. Ct. App. June

10, 2009) (first alteration in original) (citation omitted). Because a reasonable

jurist could conclude that the jury instructions as a whole did not create an

unconstitutional presumption of sanity, the Court of Appeal’s decision was not

unreasonable. Thus, habeas relief is inappropriate.

      AFFIRMED.




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