                                                                              FILED
                           NOT FOR PUBLICATION                                 SEP 17 2014

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



                            FOR THE NINTH CIRCUIT


BRANDON ARMITAGE,                                No. 11-55873

              Petitioner - Appellant,            D.C. No. 3:09-cv-00463-L-POR

  v.
                                                 MEMORANDUM*
KENNETH CLARK, Warden and JERRY
BROWN, Attorney General of the State of
California,

              Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Southern District of California
                 M. James Lorenz, Senior District Judge, Presiding

                       Argued and Submitted August 7, 2014
                               Pasadena, California

Before: WARDLAW, CALLAHAN, and M. SMITH, Circuit Judges.

       Brandon Armitage (“Armitage”) appeals from the District Court’s denial of

his habeas petition challenging his California conviction for burglary. Armitage

asserts that his case was submitted to the jury on alternate theories, one of which



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
was unconstitutional, and that the California Court of Appeal’s rejection of his

argument was contrary to clearly established federal law. We have jurisdiction

pursuant to 28 U.S.C. § 2253 and we affirm.1

       Under the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”), federal habeas corpus relief is barred unless a state court’s

adjudication of a claim was either (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) “‘based on an unreasonable determination of

the facts in light of the evidence presented in the State Court proceeding.’”

Harrington v. Richter, 131 S. Ct. 770, 783–84 (2011) (quoting 28 U.S.C. §

2254(d)(1)-(2)).

       Armitage contends that the jury was permitted to premise its conviction on a

determination that his admitted possession of methamphetamine constituted the

underlying felony charge for his burglary conviction. The California Court of

Appeal, however, found that the jury instructions, as well as the trial judge’s

responses to inquiries from the jury, properly directed the jury that in order to

convict Armitage of burglary it had to find that he entered the garage with the

specific intent to steal.


       1
            Because the parties are familiar with the facts and procedural history,
we do not restate them here except as necessary to explain our decision.
      Although the jury instructions included an accurate, general definition of the

crime of burglary, all of the instructions concluded with the requirement that the

jury find that Armitage had a specific intent to steal. In response to the jury’s first

note, the trial judge responded that ‘[t]he theory advanced by the district attorney is

that the defendant entered an inhabited dwelling house with the specific intent to

steal, not to commit any other crime.” In response to the jury’s second inquiry, the

trial judge referred the jury to the definition of burglary set forth in the written

instructions. We view Armitage’s assertions “in the context of the instructions as a

whole and the trial record.” Estelle v. McGuire, 502 U.S. 62, 72 (1991). In

addition, we presume that the jury followed the instructions. Weeks v. Angelone,

528 U.S. 225, 234 (2000). Having reviewed all the materials, we conclude that

Armitage has not shown that the California Court of Appeal unreasonably found

that the jury instructions as a whole required that the jury find that he entered the

garage with the intent to steal. Accordingly, he is not entitled to relief under

AEDPA.

      Because Armitage has not shown that the California Court of Appeal erred

in determining that the case was not submitted to the jury on alternate theories, we

do not reach his arguments concerning the application of Boyde v. California, 494

U.S. 370, 379–80 (1990) (reiterating that “when a case is submitted to the jury on
alternative theories the unconstitutionality of any of the theories requires that the

conviction be set aside”).

      AFFIRMED.
