                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                             FILED
                            FOR THE NINTH CIRCUIT
                                                                             APR 20 2016
                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS
SCOTT PATRICK,                                    No. 15-15567

              Petitioner - Appellant,             D.C. No. 2:07-cv-00582-GEB-
                                                  GGH
 v.

SUSAN L. HUBBARD,                                 MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
              Garland E. Burrell, Jr., Senior District Judge, Presiding

                            Submitted April 12, 2016**
                             San Francisco, California

Before: THOMAS, Chief Judge and REINHARDT and CHRISTEN, Circuit
Judges.

      California prisoner Scott Patrick appeals the district court’s denial of his writ

of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253 and review the



        *
             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).
denial of his writ de novo. Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir.

2005). We affirm.

      Patrick argues that the supplemental jury instruction lowered the

prosecution’s burden of proof with respect to force, thereby depriving him of due

process. We need not decide whether the instruction violated Patrick’s due process

rights because we conclude that the California Court of Appeal was not objectively

unreasonable in finding that any such error was harmless. See Davis v. Ayala, 135

S. Ct. 2187, 2198 (2015).

      Patrick’s daughter, “S”, testified that Patrick repeatedly overwhelmed her

resistance to his sexual advances by pushing her onto the bed, pulling her back to

the bedroom when she ran away, holding her head down to his penis during oral

sex, and other similar actions. The state court analyzed prejudice assuming that

these events occurred. It then held that Patrick’s acts as described by S constituted

“force” under the statutes at issue, Cal. Penal Code § 288(b) and § 269. Thus, the

court determined that any error in the force instructions was harmless.

      We may not review the state court’s determination that, assuming S’s

testimony to be true, Patrick used force as a matter of state law. See Estelle v.

McGuire, 502 U.S. 62, 67–68 (1991). Therefore, Patrick suffered no prejudice if it

was not objectively unreasonable for the state court to conclude the jury believed


                                           2
S’s testimony. We conclude that it was not only not unreasonable, but virtually

certain that the jury did so.

       As the court noted, Patrick came close to conceding in his state appellate

brief that he had used the kind of force to which S testified: “If the jury believed

[S] at all, it had to conclude that what happened to her was ‘real’ and that appellant

had pushed her on the bed, pulled her into the room and held her head down to his

penis . . . . Obviously, the acts occurred and were ‘real.’” The record makes it clear

that the jury believed S. For example, Patrick argued that she had exaggerated the

number of acts and that the jury should not convict him on all fifty-four counts.

The jury, however, was convinced by her testimony and found him guilty on all

charges. Likewise, the trial judge noted at sentencing: “This child described

fighting with Dr. Patrick and trying to prevent him doing what he did to her, and

she was unable to overcome him, and that testimony was true. The Court believed

it. The jury believed it.” Indeed, before us, Patrick does not argue that it was

unreasonable for the Court of Appeal to evaluate prejudice on the assumption that

Patrick had used the kind of force described above.1 Under these circumstances,




       1
        In light of our conclusion we need not consider whether duress constitutes
a separate basis for affirming the district court.

                                           3
the Court of Appeal’s holding that the alleged jury instruction error was not

prejudicial was not unreasonable. See Davis, 135 S. Ct. at 2198–99.2

AFFIRMED.




      2
       For the same reason we conclude that any error also does not satisfy the
standard of Brecht v. Abrahamson, 507 U.S. 619, 637 (1993).

                                          4
