                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 17 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


ERNESTO ARELLANO,                                No. 12-17495

               Petitioner - Appellant,           D.C. No. 2:10-cv-02684-DAD

 v.
                                                 MEMORANDUM*
RAYMOND MADDEN, acting Warden,

               Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Dale A. Drozd, Magistrate Judge, Presiding

                           Submitted December 7, 2015**
                             San Francisco, California

Before:        KOZINSKI, BYBEE and CHRISTEN, Circuit Judges.

      The California Court of Appeal reasonably concluded that admitting

informant Bowie’s testimony did not violate Arellano’s Sixth Amendment rights.

The Supreme Court has found the admission of informant testimony to be

          *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
          **
          The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
                                                                               page 2
unconstitutional only where the informant gathered incriminating statements while

acting as an agent of the state. See Maine v. Moulton, 474 U.S. 159, 163, 176

(1985); United States v. Henry, 447 U.S. 264, 270, 273 (1980). Here, the state

court properly determined that Bowie was not a state agent. The police told Bowie

that they couldn’t provide any consideration in exchange for incriminating

information that Bowie obtained from inmates. They also reminded Bowie that the

decision to pass information to law enforcement would be “solely up to him.” And

Bowie testified that he gathered information without any expectation of leniency or

benefits.

      Arellano cannot obtain relief under Ninth Circuit case law finding a

constitutional violation based on an implicit agreement between police and an

informant. See Randolph v. California, 380 F.3d 1133, 1144 (9th Cir. 2004).

Circuit precedent does not constitute “clearly established [f]ederal law, as

determined by the Supreme Court” that a state court is required to follow. See

Glebe v. Frost, 135 S. Ct. 429, 431 (2014) (per curiam) (quoting 28 U.S.C. §

2254(d)(1)).


AFFIRMED.
