                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 12 2015

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

HERIBERTO CASTRO-GUTIERREZ,                      No. 13-16296

              Petitioner - Appellant,            D.C. No. 2:12-cv–2421-GGH

  v.
                                                 MEMORANDUM*
RON BARNS, Warden,

              Respondent - Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                 Gregory G. Hollows, Magistrate Judge, Presiding

                          Submitted December 9, 2014**
                            San Francisco, California

Before: PAEZ and TASHIMA, Circuit Judges, and QUIST, Senior District Judge.**


       Appellant Heriberto Castro-Gutierrez, a California state prisoner, appeals the

district court’s denial of his petition for habeas corpus under 28 U.S.C. § 2254.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
        **
             The Honorable Gordon J. Quist, Senior District Judge for the U.S.
District Court for the Western District of Michigan, sitting by designation.
Castro-Gutierrez contends that the trial court violated his right to due process by

giving the jury an erroneous instruction on the kidnapping charge against him. We

have jurisdiction under 28 U.S.C. § 2253(a). We review the district court’s

decision de novo, see Lopez v. Thompson, 202 F.3d 1110, 1116 (9th Cir. 2000),

and we affirm.

      Under the Antiterrorism and Effective Death Penalty Act of 1996, a federal

court may grant a habeas petition on a claim adjudicated on the merits in state

court only if the state court’s decision “was contrary to, or involved an

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

Supreme Court of the United States” or “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d). Castro-Gutierrez contends that the decision of

the California Court of Appeal involved an unreasonable application of clearly

established Federal law.

      The Supreme Court has explained that “not every ambiguity, inconsistency,

or deficiency in a jury instruction rises to the level of a due process violation.”

Middleton v. McNeil, 541 U.S. 433, 437 (2004) (per curiam). The relevant

question “is whether the ailing instruction by itself so infected the entire trial that

the resulting conviction violates due process.” Estelle v. McGuire, 502 U.S. 62, 72


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(1991) (internal quotation marks omitted). “[T]he instruction may not be judged

in artificial isolation, but must be considered in the context of the instructions as a

whole and the trial record.” Id. (internal quotation marks omitted).

      The Court of Appeal looked at the jury instructions as a whole, noting that

the trial court had correctly instructed the jury on the elements of the kidnapping

charge on two separate instances. The court concluded that there was no

reasonable likelihood that the jury ignored those instructions and convicted Castro-

Gutierrez pursuant to the challenged instruction. That conclusion did not involve

an unreasonable application of federal law. See Middleton, 541 U.S. at 438

(“Given three correct instructions and one contrary one, the state court did not

unreasonably apply federal law when it found that there was no reasonable

likelihood the jury was misled.”).

      The Court of Appeal further concluded that the challenged instruction did

not negate Castro-Gutierrez’s consent defense, citing as an additional reason that

the prosecutor had focused on the lack of consent in his argument. “Nothing . . .

precludes a state court from assuming that counsel’s arguments clarified an

ambiguous jury charge. This assumption is particularly apt when it is the

prosecutor’s argument that resolves an ambiguity in favor of the defendant.” Id.

Accordingly, the state court’s conclusion that there was no reasonable likelihood


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that the jury was misled regarding the consent defense, particularly in light of the

prosecutor’s closing argument, was not unreasonable.

      AFFIRMED.




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