                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        AUG 1 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

CARLOS A. ESCOBAR,                              No.    18-16417

                Petitioner-Appellant,           D.C. No.
                                                2:10-cv-01973-KJD-NJK
 v.

BRIAN E. WILLIAMS; ATTORNEY                     MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,

                Respondents-Appellees.

                   Appeal from the United States District Court
                            for the District of Nevada
                    Kent J. Dawson, District Judge, Presiding

                        Argued and Submitted June 7, 2019
                                Portland, Oregon

Before: MURGUIA and HURWITZ, Circuit Judges, and GAITAN,** District
Judge.

      In a 28 U.S.C. § 2254 habeas corpus petition, Carlos A. Escobar argued that

he was deprived of his Fifth and Sixth Amendment rights because the jury at his



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Fernando J. Gaitan, Jr., United States District Judge
for the Western District of Missouri, sitting by designation.
Nevada criminal trial was misinformed as to the meaning of “reasonable doubt.”

We review the district court’s denial of the petition de novo. See Hurles v. Ryan,

752 F.3d 768, 777 (9th Cir. 2014). We affirm.

      Escobar concedes that we have found the reasonable-doubt jury instruction

given in his case constitutional. See Ramirez v. Hatcher, 136 F.3d 1209, 1213–14

(9th Cir. 1998). But he argues that the instruction was susceptible to erroneous

interpretation, and the prosecutor exacerbated the potential problem by arguing in

closing that reasonable doubt is equivalent to the type of doubt that people

experience when deciding to get married or buy a house. Specifically, Escobar

argues that the prosecutor invited the jury to misinterpret this portion of the

reasonable-doubt instruction: “[Reasonable doubt] is such a doubt as would govern

or control a person in the more weighty affairs of life.”

      The Nevada Supreme Court has previously held a similar argument by a

prosecutor to be unconstitutional. See Holmes v. State, 972 P.2d 337, 343 (Nev.

1998) (“[P]rosecutorial commentary analogizing reasonable doubt with major life

decisions such as buying a house or changing jobs is improper because these

decisions involve elements of uncertainty and risk-taking and are wholly unlike the

kinds of decisions that jurors must make in criminal trials.”). But in Escobar’s

case, the Nevada Supreme Court found that the prosecutor’s error was “cured”

because the trial court properly instructed the jury on reasonable doubt. Under the


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Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we may

disturb the Nevada Supreme Court’s decision only if it was “contrary to, or

involved an unreasonable application of, clearly established Federal law[.]” 28

U.S.C. § 2254(d)(1). Though we are concerned by the prosecutor’s statements in

this case and their potential effect on the jury, we must affirm under AEDPA’s

deferential standard.

      But, as this Court noted years ago, the “weighty affairs” language in

Nevada’s reasonable-doubt instruction is easily susceptible to erroneous

interpretation. See Ramirez, 136 F.3d at 1213–14 (holding that Nevada’s

reasonable-doubt instruction was constitutional, but declining to “endorse the

Nevada instruction’s ‘govern or control’ language,” and noting that the “Supreme

Court and various circuits have expressed disapproval of” similar language). And

the prosecutor’s arguments in Escobar’s case—the last thing the jury heard before

beginning deliberations—exacerbated this very concern.

      However, we cannot say that the Nevada Supreme Court was “objectively

unreasonable” in finding no reversible error under the circumstances of this case.

See White v. Woodall, 134 S. Ct. 1697, 1702 (2014). The trial court gave a

constitutionally adequate reasonable-doubt instruction, and a “jury is presumed to

follow its instructions.” Weeks v. Angelone, 528 U.S. 225, 234 (2000). Moreover,

the prosecutor’s arguments were rambling and not especially persuasive.


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      Because fair-minded jurists could disagree whether Escobar’s constitutional

rights were violated, we must defer to the Nevada Supreme Court’s decision. See

Harrington v. Richter, 562 U.S. 86, 101 (2011).1

      AFFIRMED.




      1
             Escobar’s argument that the state court’s decision was contrary to
Sullivan v. Louisiana, 508 U.S. 275 (1993), is misplaced. That case involved an
improper reasonable-doubt jury instruction, whereas Escobar’s jury was properly
instructed.

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