                                                                              FILED
                             NOT FOR PUBLICATION                               DEC 21 2011

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT

XIONG NICK YANG,                                   No. 09-17813

              Petitioner - Appellant,              D.C. No. 2:05-cv-00943-JAM-
                                                   KJM
  v.

JEANNE S. WOODFORD,                                MEMORANDUM *

              Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                      Argued and Submitted December 1, 2011
                             San Francisco, California

Before: THOMAS and CLIFTON, Circuit Judges, and CARR, Senior District
Judge.**

       Xiong Nick Yang appeals from the denial of his petition for a writ of habeas

corpus arising out of his convictions in California state court. We affirm. Because

the parties are familiar with the history of the case, we need not recite it here.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable James G. Carr, Senior District Judge for the U.S.
District Court for the Northern district of Ohio, sitting by designation.
      The California state court decision denying relief was not contrary to, or an

unreasonable application of, clearly established federal law, as determined by the

United States Supreme Court. 28 U.S.C. § 2254(d).

      In this case, co-defendants entered into plea agreements, but sentencing was

deferred until after Yang’s trial. Yang contends that the plea agreements were

structured to prevent his co-defendants from testifying and, if they had testified,

they would have identified a different person as the actual shooter in the incident.

The state court’s conclusion that the plea structuring was not misconduct that

“infected the entire trial” was not objectively unreasonable. After carefully

considering the evidence and the record, we conclude that the state court’s

determination was not “so lacking in justification that [it] was an error well

understood and comprehended in existing law beyond any possibility for

fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

A fairminded jurist could conclude that a defendant, after pleading guilty, might

falsely accept responsibility for the crime in order to exculpate a co-defendant.

See, e.g., People v. Conerly, 176 Cal. App. 4th 240, 249 (2009) (“When the

evidence against a particular defendant is strong, that individual will have a

powerful incentive to accept a plea offer. Following sentencing, that individual has

nothing to lose by testifying on behalf of the other co-defendants and taking sole


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responsibility for the crime, free of further penal consequences.”). In addition, the

state court found that petitioner had failed to show prejudice, in that no other

outcome of the trial would have been reasonably likely, particularly in light of

aider and abetter liability under California law. Although fair minded jurists might

well draw different conclusions on these questions, the state court’s resolution is

sufficiently justifiable under 28 U.S.C. § 2254(d). Therefore, the district court

correctly denied federal habeas relief.




      AFFIRMED.




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