                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JUL 15 2011

                                                                          MOLLY C. DWYER, CLERK
RAYMOND L. OUBICHON,                             No. 09-15325               U.S. COURT OF APPEALS



              Petitioner - Appellant,            D.C. No. 2:07-cv-00838-GEB-
                                                 CHS
  v.

MATTHEW CATE, Warden, and                        MEMORANDUM*
MICHAEL S. EVANS, Secretary of the
California Department of Corrections and
Rehabilitations,

              Respondents - Appellees.


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

                       Argued and Submitted July 12, 2011
                           San Francisco, California

Before: SILVERMAN and GRABER, Circuit Judges, and WRIGHT,** District
        Judge.

       Petitioner Raymond L. Oubichon appeals the denial of his petition for

habeas corpus under 28 U.S.C. § 2254. The district court issued a certificate of

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable Otis D. Wright II, United States District Judge for the
Central District of California, sitting by designation.
appealability with respect to several claims for relief.1 We review de novo. Kemp

v. Ryan, 638 F.3d 1245, 1254 (9th Cir. 2011). Because the Antiterrorism and

Effective Death Penalty Act of 1996 applies to this case, we ask whether the state

courts unreasonably applied clearly established federal law as determined by the

Supreme Court. 28 U.S.C. § 2254(d). For the state courts’ application of clearly

established law to be unreasonable under § 2254(d), we must conclude that no

fairminded jurist could agree with the state court’s decision. Harrington v. Richter,

131 S. Ct. 770, 786 (2011). Because we hold that the state courts reasonably

applied clearly established federal law in this case, we affirm.

      1. Petitioner first argues that the state court violated due process when it

entered a conviction for attempted criminal threat without submitting the question

to a jury. But a jury already had convicted Petitioner of the greater offense of

making a criminal threat. That offense contains every element of attempted

criminal threat, People v. Toledo, 26 P.3d 1051, 1057 (Cal. 2001), and contains an

additional element: that the perpetrator actually placed the victim "in sustained

fear of his or her own safety or for his or her immediate family’s safety," Cal.

      1
        Petitioner’s brief argues three additional issues that the district court did
not certify for appeal. We agree with the district court that Petitioner has failed to
make a "substantial showing of the denial of a constitutional right" with respect to
those issues. 28 U.S.C. § 2253(c)(2). We therefore decline to issue a certificate of
appealability on those issues, and we do not consider them on their merits.

                                         -2-
Penal Code § 422. On Petitioner’s first appeal, the California Court of Appeal held

that the evidence did not necessarily establish that Petitioner’s threat put the victim

"in sustained fear" of her safety, so it remanded the case and gave the state the

option to retry Petitioner on the greater offense or to accept a judgment of

conviction on the lesser offense. The state chose the latter option, and the trial

court entered the lesser conviction. In different but related circumstances, the

Supreme Court upheld a state court’s decision to reduce an improper conviction of

a greater offense to a conviction of a lesser offense without submitting the question

to a jury when "it [was] clear that the jury necessarily found that the defendant’s

conduct satisfie[d] the elements of the lesser included offense." Morris v.

Mathews, 475 U.S. 237, 247 (1986). We hold that the state courts reasonably

applied Morris here when they rejected Petitioner’s due process claim. We

therefore hold that Petitioner’s due process claim does not warrant habeas relief

under § 2254(d).2

      2. Petitioner next argues that the state courts lacked subject-matter

jurisdiction to enter a conviction of the lesser offense. He supports his argument

      2
        Petitioner additionally argues that his sentence violates the Eighth
Amendment’s ban on cruel and unusual punishment because the trial court lacked
the authority to enter a conviction of attempted criminal threat. Because the state
courts reasonably concluded that the trial court properly entered that conviction,
we hold that they also reasonably rejected Petitioner’s Eighth Amendment claim.

                                          -3-
by quoting Burks v. United States, 437 U.S. 1 (1978). But Burks has no

application here. In Burks, 437 U.S. at 10-11, the Supreme Court held that a

criminal defendant may not be put on trial again for a crime that the government

failed to prove that he committed in a previous trial. Here, by contrast, the

California Court of Appeal reversed Petitioner’s original conviction not because it

thought that the state had failed to prove its case, but because the trial court erred

when it failed to instruct the jury on the lesser offense even though the evidence

could support the jury’s verdict on the greater offense. We therefore reject

Petitioner’s assertion that, under clearly established federal law, the state courts

lacked jurisdiction to enter the conviction of attempted criminal threat without

submitting the matter to a jury.

      3. Petitioner next claims that the trial court violated his Sixth Amendment

right to be present when the court reporter read back the testimony of a state

witness to the jury during its deliberations without giving Petitioner or his lawyer

the opportunity to observe. A readback of an eyewitness’ testimony, without

counsel’s knowledge or permission, has not been condemned by the Supreme

Court. We have observed that the Court "has never addressed whether readback of

testimony to a jury is a critical stage of the trial triggering a criminal defendant’s

fundamental right to be present. Nor has the Court considered any case with


                                           -4-
materially indistinguishable facts." La Crosse v. Kernan, 244 F.3d 702, 708 (9th

Cir. 2001) (internal quotation marks and brackets omitted). Without clear

guidance from the Supreme Court, we cannot say that the California court's

determination here was contrary to or an unreasonable application of clearly

established federal law.

      Our decision in Fisher v. Roe, 263 F.3d 906, 916 (9th Cir. 2001), overruled

on other grounds by Payton v. Woodford, 346 F.3d 1204, 1217 n.18 (9th Cir.

2003) (en banc), overruled by Brown v. Payton, 544 U.S. 133 (2005), is not to the

contrary. The Fisher court reviewed a "‘postcard denial,’" which entailed "‘an

independent review of the record . . . to determine whether the state court clearly

erred in its application of controlling federal law.’" Id. at 914 (alteration in

original) (quoting Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)). Here, the

state court did hand down a reasoned decision, so greater deference is due. In

addition, Fisher relied on procedural errors that compounded the secret readback.

Id. at 910 n.1. As a result, the jurors requested and received only selected parts of

the witness’ testimony. Id. at 911. Here, though, we have no reason to suppose

that the readback of the entire witness’ testimony had a "substantial or injurious

effect or influence in determining the jury’s verdict." Brecht v. Abrahamson, 507

U.S. 619, 638 (1993) (internal quotation marks omitted). We therefore hold that


                                          -5-
the California Court of Appeal reasonably concluded that Petitioner has failed to

show prejudice from the readback, even assuming that the trial court erred by

allowing the readback outside the presence of Petitioner and his lawyer.

      4. Petitioner next argues that the record contains insufficient evidence to

prove his guilt of attempted criminal threat. Specifically, he asserts that his

intoxication at the time of the event deprived him of the capacity to form the

required intent and that the state did not produce enough evidence of an overt act

made in furtherance of the crime as required to prove attempt. We previously have

recognized the "heavy burden" that a habeas petitioner must carry to make a

successful insufficiency of the evidence claim. Juan H. v. Allen, 408 F.3d 1262,

1274 (9th Cir. 2005). Not only must Petitioner establish that, after viewing the

evidence in the light most favorable to the prosecution, no rational finder of fact

could have found the essential elements of the crime beyond a reasonable doubt,

Jackson v. Virginia, 443 U.S. 307, 319 (1979), but he also must surmount the

"additional layer of deference" owed to the state courts’ rejection of his claim

under AEDPA, Juan H., 408 F.3d at 1274.

      Here, the jury heard evidence that, on the day of the crime, Petitioner

ordered a pizza and went to pick it up. After he returned, Petitioner and the victim,

his wife, engaged in a long argument that began in their apartment and continued


                                          -6-
outside. After someone offered to call the police, Petitioner told his wife, "If the

cops don’t get me, I’ll come back and kill you." He then went back to the

apartment, threw a bottle at the window, took a knife from a drawer in the kitchen,

and left the premises to evade the police. Although some of the witnesses disputed

that evidence, we cannot conclude that no rational finder of fact could have found

beyond a reasonable doubt that Petitioner had the capacity to form the required

intent and that he threatened his wife. Nor can we conclude that the state courts

unreasonably so held. We therefore reject Petitioner’s insufficiency of the

evidence claim.

       5. Finally, Petitioner argues that his lawyer rendered constitutionally

deficient assistance by failing to make the insufficiency of the evidence argument

addressed above, during Petitioner’s direct appeal. To succeed on his ineffective

assistance of counsel claim, Petitioner must establish a reasonable probability that,

but for his lawyer’s error, the result of the proceedings would have been different.

Strickland v. Washington, 466 U.S. 668, 694 (1984). For the reasons stated above,

we see no reasonable probability that Petitioner would have succeeded on his

insufficiency of the evidence claim in his direct appeal. We therefore hold that

Petitioner has failed to show prejudice from his lawyer’s alleged error. He is not

entitled to relief.

       AFFIRMED.

                                          -7-
