                            NOT FOR PUBLICATION                             FILED
                     UNITED STATES COURT OF APPEALS                         AUG 18 2015

                                                                         MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                         U.S. COURT OF APPEALS




BRYANT KEITH WILLIAMS,                            No. 11-57255

              Petitioner - Appellant,             D.C. No. 2:10-cv-04053-AG-OP

 v.
                                                  MEMORANDUM*
GARY SWARTHOUT, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    Andrew J. Guilford, District Judge, Presiding

                        Argued and Submitted June 4, 2014
                              Pasadena, California

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

      On October 23, 2014, we filed an opinion reversing the district court’s

denial of Williams’s petition for writ of habeas corpus and directing the district

court to grant the writ. See Williams v. Swarthout, 771 F.3d 501, 509–10 (9th Cir.

2014). We stayed the mandate while the Supreme Court considered Davis v.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Ayala, No. 13-1428. The Supreme Court has since issued its opinion in Ayala. See

135 S. Ct. 2187 (2015). We have jurisdiction under 28 U.S.C. § 1291. We

withdraw our former opinion and affirm the district court.

      According to Williams, the California Court of Appeal determined that the

trial court committed constitutional error by instructing the jury that Williams had

pled guilty, but concluded that the error was harmless. Williams misreads the state

court’s opinion. Under California law, an alleged improper influence on the jury

rises to a due process violation only if it was “‘inherently and substantially likely

to have influenced a juror.’” People v. Ramos, 101 P.3d 478, 497 (Cal. 2004)

(quoting People v. Nesler, 941 P.2d 87, 99 (Cal. Ct. App. 1997)). Here, the state

court of appeal concluded that the trial court’s erroneous instruction was not

inherently likely to influence the jury against Williams, and therefore that the error

did not rise to a due process violation.

      Even if the California Court of Appeal had found a constitutional violation,

its conclusion that the superior court’s error did not prejudice Williams was neither

an unreasonable determination of the facts nor contrary to or an unreasonable

application of clearly established federal law. See 28 U.S.C. § 2254(d); Davis v.

Ayala, 135 S. Ct. 2187, 2198–99 (2015). When a juror announced during

deliberations that the trial court’s erroneous statement that the defendant had pled

guilty might have biased the juror, the court dismissed the juror and replaced him
with an alternate. Otherwise, the court took pains to ensure that its misstatement

had not affected any other juror’s ability to consider the evidence impartially.

“‘Fairminded jurists could disagree’” as to whether the district court’s efforts cured

any improper influence that its earlier misstatement may have had on the jurors.

See Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)).

      AFFIRMED.

      REINHARDT, Circuit Judge, concurs in the result.
