                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 17 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

EDDIE LOPEZ MONTANEZ,                           No.    16-56367

                Petitioner-Appellant,           D.C. No.
                                                3:15-cv-00173-BTM-BLM
 v.

JEFFREY A. BEARD; XAVIER                        MEMORANDUM*
BECERRA,

                Respondents-Appellees.

                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry Ted Moskowitz, Chief Judge, Presiding

                    Argued and Submitted November 15, 2018
                              Pasadena, California

Before: GOULD, PARKER,** and MURGUIA, Circuit Judges.

      Eddie Lopez Montanez was convicted in California state court of first-

degree murder on a felony-murder theory and sentenced to 26 years to life. In this

habeas petition, Montanez argues that his federal due process rights were violated



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Barrington D. Parker, United States Circuit Judge for
the U.S. Court of Appeals for the Second Circuit, sitting by designation.
because the jury instructions were silent as to who bore the burden of proving

Montanez’s duress defense. We have jurisdiction pursuant to 28 U.S.C. § 1291,

and we affirm the district court’s denial of Montanez’s petition.

      The California Court of Appeal adjudicated the merits of this claim when it

found that any error in the jury instruction regarding the burden of proving duress

was “harmless beyond a reasonable doubt” under Chapman v. California, 386 U.S.

18, 24 (1967), the harmlessness standard for federal constitutional errors.

Therefore, our review of Montanez’s claim is governed by the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”). 28 U.S.C. § 2254(d); see Davis

v. Ayala, 135 S. Ct. 2187, 2198 (2015) (holding that the state court adjudicated the

petitioner’s claim “on the merits” for purposes of AEDPA where the state court

assumed error under federal law and found any error harmless under Chapman).

We review the district court’s denial of Montanez’s petition de novo. Hurles v.

Ryan, 752 F.3d 768, 777 (9th Cir. 2014).

      The California Court of Appeal did not “appl[y] Chapman in an objectively

unreasonable manner” in concluding that any error in the duress instruction was

harmless. Davis, 135 S. Ct. at 2198 (internal quotation marks omitted). The court

reasonably concluded that: (1) the jury instructions as a whole sufficiently

informed the jury that the prosecution bore the burden on the duress defense; and

(2) instructing the jury regarding this burden would not have made a difference in


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Montanez’s case because the evidence he presented in support of the duress

defense was weak. See Estelle v. McGuire, 502 U.S. 62, 72 (1991) (“It is well

established that the [allegedly erroneous jury] 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.”) (quoting Cupp v. Naughten, 414 U.S. 141, 147

(1973)); Cal. Penal Code § 26 (a defendant acted under duress if he acted “under

threats or menaces sufficient to show that [he] had reasonable cause to and did

believe [his life] would be endangered if [he] refused”). In fact, Montanez never

testified that he believed he was in immediate danger if he did not participate in

raping the victim. And Montanez admitted that despite being scared of Steve

Montanez (“Steve”), his brother and co-defendant, Montanez willingly spent the

whole day of the incident hanging out with Steve and continued to associate with

Steve after that day. Because “a fairminded jurist could agree with” the California

Court of Appeal’s Chapman determination, Montanez cannot demonstrate actual

prejudice under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). See Davis, 135

S. Ct. at 2199. Nor has Montanez pointed to any unreasonable factual

determination made by the California Court of Appeal. See 28 U.S.C. § 2254(d)(2).

AFFIRMED.




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