                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             SEP 07 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ULICES AGUILAR,                                  No.   15-16944

              Petitioner-Appellant,              D.C. No.
                                                 1:12-cv-01547-LJO-JLT
 v.

WARREN MONTGOMERY,                               MEMORANDUM*

              Respondent-Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                Lawrence J. O’Neill, Chief District Judge, Presiding

                      Argued and Submitted August 15, 2017
                            San Francisco, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and EZRA,** District
Judge.

      Ulices Aguilar was convicted by a California jury of second-degree murder.

He now appeals the district court’s denial of habeas corpus relief on two claims



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
relating to juror bias and misconduct, which were denied as procedurally barred,

and alternatively, as meritless. We affirm.

1.    The district court correctly found that Aguilar’s claim relating to Juror 3 was

procedurally barred. Harris v. Reed, 489 U.S. 255, 262 (1989). Looking to the

last reasoned opinion on the claim, we examine the California Court of Appeal’s

decision on habeas review. Cannedy v. Adams, 706 F.3d 1148, 1156 (9th Cir.

2013). That court properly held the claim was barred by the state’s so-called

Dixon bar, see In re Dixon, 264 P.2d 513, 514 (Cal. 1953) (en banc), which

requires a defendant to raise a claim on direct appeal to preserve it for habeas. See,

e.g., Johnson v. Lee, 136 S. Ct. 1802, 1805 (2016) (per curiam) (holding that the

Dixon bar is an adequate state ground); In re Robbins, 959 P.2d 311, 338–39 &

n.32 (Cal. 1998) (independent); cf. In re Seaton, 95 P.3d 896, 901 n.4 (Cal. 2004)

(explaining that a state court may bar habeas claims under either California’s rule

requiring a timely objection at trial or the Dixon bar, if both could apply). Further,

we decline to certify Aguilar’s derivative claim of ineffective assistance of trial

counsel relating to Juror 3, because it does not present “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

2.    The district court erred by holding as procedurally barred Aguilar’s

ineffective assistance of counsel claim relating to Juror 9. No state court has


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explicitly addressed this claim except the Court of Appeal on direct review, which

reserved it for habeas. As a result, the California Supreme Court rejected the claim

on the merits in its summary denial of habeas relief. Harrington v. Richter, 562

U.S. 86, 99 (2011).

      We grant certification to review the merits of Aguilar’s Juror 9 claim. See

28 U.S.C. § 2253(c)(2). However, we cannot say that the California Supreme

Court’s resolution of the claim constituted an unreasonable application of

Strickland v. Washington, 466 U.S. 668, 687–88, 694 (1984), under any theory.

See Harrington, 562 U.S. at 102, 105. Aguilar cannot show the required prejudice

under that “doubly” deferential standard. Id. at 105 (citation omitted). No

evidentiary hearing was required. The state trial court did not make an

unreasonable determination of the facts. See Taylor v. Maddox, 366 F.3d 992,

1000 (9th Cir. 2004). We therefore affirm the district court’s rejection of the Juror

9 claim on the alternative ground that the claim is without merit.

      AFFIRMED.




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