                                                                            FILED
                            NOT FOR PUBLICATION
                                                                            MAR 22 2016
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


RICARDO POLANCO,                                  No. 14-55857

              Petitioner - Appellant,             D.C. No. 2:12-cv-06564-PA-RZ

 v.
                                                  MEMORANDUM*
CLARK E. DUCART, Acting Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                       Argued and Submitted March 9, 2016
                              Pasadena, California

Before: REINHARDT, MURGUIA, and OWENS, Circuit Judges.

      Petitioner Ricardo Polanco appeals the district court’s dismissal of his

petition for habeas corpus relief. Polanco was convicted in 2008 of conspiracy to

commit murder. He seeks to overturn his conviction on the grounds that (1) the

evidence presented at his trial was insufficient to support his conviction, and (2) he



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
was deprived of a fair trial as a result of allegedly prejudicial and erroneously

admitted evidence, in violation of due process.

      1. Because Polanco’s sufficiency of the evidence claim was adjudicated on

the merits by the California Court of Appeal, under AEDPA we may not grant

relief unless that decision was based on an unreasonable determination of the facts

or involved an unreasonable application of clearly established Supreme Court law.

28 U.S.C. § 2254(d). “A petitioner for a federal writ of habeas corpus faces a

heavy burden when challenging the sufficiency of the evidence used to obtain a

state conviction on federal due process grounds.” Juan H. v. Allen, 408 F.3d 1262,

1274 (9th Cir. 2005). Under Jackson v. Virginia, “the relevant question is whether,

after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a

reasonable doubt.” 443 U.S. 307, 319 (1979).

      Under California law, a conviction for conspiracy to commit murder requires

proof that (i) the defendant agreed to commit murder, and (ii) that the defendant

specifically intended to commit the murder. People v. Swain, 12 Cal. 4th 593,

600–02 (1996). Polanco admits that he agreed to kill a man named Buelna, but

argues that he did so because he did not dare refuse. The evidence presented at

trial, he argues, showed that he only pretended to be willing to carry out the crime,


                                           2
and that instead of killing Buelna, he offered excuses as to why he could not

complete the crime.

       The California Court of Appeal heard and rejected this claim. Applying

Jackson v. Virginia, it determined that

       The jury was entitled to infer from the evidence that Polanco in fact
       intended to kill Buelna, and that his excuses were real. Polanco went so
       far as to obtain a weapon and scope out Buelna’s residence on more than
       one occasion. The jury simply did not believe that he was only
       pretending, and sufficient evidence . . . supported the jury’s conclusion
       that Polanco did in fact intend to kill Buelna.

After examining the evidence presented at trial, we are unable to conclude that this

determination was based on an unreasonable finding of fact or an unreasonable

interpretation of clearly established Supreme Court law. Accordingly, we affirm

the district court’s decision.

       2. Next, Polanco contends that he was deprived of a fair trial because of the

admission of allegedly prejudicial testimony. Prior to the trial, the judge

determined that neither party should introduce evidence that Buelna had been

murdered, by someone other than Polanco and his co-conspirators, years after the

conspirators had been arrested. During trial, a witness for the state mentioned the

eventual murder under cross-examination by the defense. The trial judge offered a

curative instruction, explaining that the victim had been murdered in 2007, nearly



                                          3
two years after Polanco and his co-conspirators had been arrested, and that there

was no evidence connecting Polanco or any of his co-defendants with that killing.

Further, the judge instructed, the jury was not to draw any inference from the fact

that the conspirators’ intended victim had ultimately lost his life.   “We normally

presume that a jury will follow an instruction to disregard inadmissible evidence

inadvertently presented to it, unless there is an ‘overwhelming probability’ that the

jury will be unable to follow the court’s instructions, and a strong likelihood that

the effect of the evidence would be ‘devastating’ to the defendant.” Greer v.

Miller, 483 U.S. 756, 766 n.8 (1987) (internal citations omitted). Neither is true in

this case. Thus, we hold that the admission of evidence about Buelna’s murder

was not so prejudicial as to deny Polanco a fair trial.1 Accordingly, we affirm the

district court’s denial of Polanco’s habeas petition.

      AFFIRMED.




      1
         The parties debate the appropriate standard of review applicable to this
claim. The State argues that this ground was presented to and rejected by the
California Court of Appeal, and that therefore, we should apply AEDPA deference.
In contrast, Polanco argues that the California Court of Appeal did not address the
federal constitutional aspect of this claim, and that therefore, we should review the
issue de novo. We need not resolve this debate, however, because even reviewing
de novo, we determine that the testimony about Buelna’s eventual murder was not
so prejudicial as to deny Polanco a fair trial.

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