                      FOR PUBLICATION

     UNITED STATES COURT OF APPEALS
          FOR THE NINTH CIRCUIT

 RONALD TAYLOR,                                       No. 11-55247
             Petitioner-Appellant,
                                                        D.C. No.
                       v.                            2:09-cv-05267-
                                                        ODW-OP
 JEFFREY BEARD,* Secretary of the
 California Department of
 Corrections and Rehabilitation,                         OPINION
                Respondent-Appellee.

         Appeal from the United States District Court
             for the Central District of California
          Otis D. Wright II, District Judge, Presiding

              Argued and Submitted En Banc
       September 10, 2015—San Francisco, California

                       Filed January 21, 2016

 Before: Sidney R. Thomas, Chief Judge and Diarmuid F.
O’Scannlain, Barry G. Silverman, M. Margaret McKeown,
   William A. Fletcher, Ronald M. Gould, Richard C.
   Tallman, Richard R. Clifton, Jay S. Bybee, Morgan
      Christen and John B. Owens, Circuit Judges.

                     Opinion by Judge Clifton


 *
    Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Jeffrey
Beard is substituted for his predecessor, Matthew Cate, as Secretary of the
Department of Corrections and Rehabilitation
2                        TAYLOR V. BEARD

                           SUMMARY**


                          Habeas Corpus

    The en banc court affirmed the district court’s denial of
California state prisoner Ronald Taylor’s habeas corpus
petition seeking to set aside his felony murder conviction
predicated on attempted robbery, in a case in which the trial
court originally sentenced Taylor to life without parole based
on a special-circumstance finding that he was the shooter, but
resentenced him to a reduced term, as an aider and abettor,
based on a subsequent determination that he was not the
shooter.

     Taylor argued that the conviction should be set aside
because the jury’s finding that he was the shooter meant that
it had not found him guilty on a theory of aiding and abetting.

    Reviewing de novo, the en banc court rejected Taylor’s
claim that his constitutional right to a jury trial was violated.
The en banc court observed that the prosecutor argued and the
jury considered evidence supporting a finding that Taylor was
guilty of felony murder under an aiding-and-abetting theory
as well as under the theory that he was the shooter, and that
the jury was not required to unanimously choose a particular
theory. The en banc court explained that although the jury
incorrectly determined Taylor’s identity when considering the
special circumstances, those findings do not prove it rejected
the valid aiding-and-abetting theory when considering
Taylor’s guilt for felony murder.

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                      TAYLOR V. BEARD                          3

    The en banc court added that Taylor has never established
his innocence as to the aiding-and-abetting theory, which is
unsurprising given the strength of the evidence against him.
The en banc court wrote that even if a petitioner may be
entitled to habeas relief based on a freestanding claim of
actual innocence, an open question, Taylor would not be able
to vacate his felony murder conviction because at best he has
established that the jury relied on an incorrect theory, not that
he was factually innocent of the crime.


                         COUNSEL

Kurt David Hermansen (argued), San Diego, California, for
Petitioner-Appellant.

Kamala D. Harris, Attorney General of California, Dane R.
Gillette, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Kenneth C. Byrne,
Supervising Deputy Attorney General, and Eric E. Reynolds
(argued), Deputy Attorney General, Los Angeles, California,
for Respondent-Appellee.
4                    TAYLOR V. BEARD

                         OPINION

CLIFTON, Circuit Judge:

    In 1987, two men entered Lewis Lim’s fast food
restaurant, and one of them shot Lim dead. A jury found that
Ronald Taylor was the shooter. Taylor was convicted and
sentenced to life without parole for felony murder predicated
on attempted robbery. After the trial, Taylor told the State
that his cousin was the shooter but admitted that he was the
second person — that he had traveled to and from the
restaurant with his cousin and had been present at the killing.
The State came to be persuaded that Taylor was not the
shooter. Though its subsequent attempt to prosecute the
person identified by Taylor as the actual shooter was
unsuccessful, the State still supported an effort to have
Taylor’s sentence reduced to the shorter term that would
apply to him if convicted as an aider and abettor and not as
the actual shooter. That effort was ultimately successful, and
Taylor was resentenced to a term of imprisonment with the
possibility of parole.

    Taylor objected, however, contending that his conviction
should be entirely set aside. He argued that the jury’s finding
that he was the shooter meant that it had not found him guilty
of felony murder on a theory of aiding and abetting as the
person who accompanied the shooter. A finding of guilt on
that aiding and abetting theory would have required an
additional finding of specific intent, not required to find him
guilty as the actual shooter. That claim was not addressed by
the state courts, so Taylor petitioned the federal court for a
writ of habeas corpus, under 28 U.S.C. § 2254, arguing that
the State may not continue to hold him on the basis that he
aided and abetted felony murder when the jury did not find
                      TAYLOR V. BEARD                           5

the facts necessary for the aiding and abetting theory. The
district court denied the petition, and Taylor appeals.

    We affirm the district court’s denial of Taylor’s petition.
Taylor had a fair trial. The jury verdict was valid, and the
subsequent determination that Taylor was the second man,
not the actual shooter, does not require that his conviction be
set aside.

I. Background

    The following facts emerged at trial and are undisputed.
On November 19, 1987, petitioner Ronald Taylor and another
man stole a car with the intent to use it to commit a robbery.
At around 3:10 p.m. that day, the two men drove the stolen
car to a Pioneer Chicken restaurant in Sunland, California.
The first man entered the restaurant and requested the key to
the lavatory from Rajinder Kaur, the attendant behind the
counter. Kaur gave him the key and the man went out of the
restaurant to the lavatory, which was entered from the
outside. The man kept the lavatory door ajar and watched
until two customers drove off. The second man remained
outside, sitting either in the car or on its hood, able to see the
lavatory.

    The first man then reentered the restaurant, walked behind
the counter into the kitchen area, and gave the key back to
Kaur with his left hand while pulling a gun from his pocket
with his right. The second man had by then also entered the
restaurant and was sitting in the dining area near the
restaurant cook, who was eating lunch. The owner of the
restaurant, Lewis Lim, caught the attention of the gunman.
While the gunman was distracted by Lim, Kaur went through
the kitchen door to the dining area to summon help. The first
6                       TAYLOR V. BEARD

man (“shooter”) then punched Lim and shot him through the
head. As Kaur tried to leave, the second man (“lookout”)
struck her on the back and threw her to the floor. The two
men fled in the stolen car in which they had arrived. The car
was later found wiped down with brake fluid to remove
fingerprints, but Taylor’s palm print was recovered.

    Taylor was arrested and charged with murdering Lim in
violation of California Penal Code § 187(a). The State also
alleged three special circumstances which, if found true,
would increase the sentence Taylor faced upon conviction.
First, it alleged that Taylor committed the murder while in the
attempted commission of a robbery in violation of Penal
Code § 190.2(a)(17).1 Second, the State alleged that Taylor
personally used a firearm during the crime. Third, the State
alleged that a principal was armed with a firearm during the
offense.

    There was a dispute at trial whether Taylor, if he was
present at all, was the shooter or the lookout. The prosecutor
argued that both men, shooter and lookout, were guilty of
felony murder. Because Lim was killed during the course of
the robbery, the lookout could be found guilty of felony
murder under an aiding and abetting theory for attempting to
rob the Pioneer Chicken, and the jury was so instructed. But,
as the prosecutor acknowledged at the time, the jury could not
properly find the § 190.2(a)(17) special circumstance “true”
as to Taylor on an aiding and abetting theory.


    1
    That section provides, in relevant part: “The murder was committed
while the defendant was engaged in, or was an accomplice in, the
commission of, attempted commission of, or the immediate flight after
committing, or attempting to commit, the following felonies: (A) Robbery
in violation of Section 211 or 212.5.”
                      TAYLOR V. BEARD                           7

      Under California law, someone found guilty as “an actual
killer” does not need to “have had any intent to kill at the
time of the commission of the offense” for the special
circumstance to be found true, but someone who aided and
abetted the murder is subject to the special circumstance only
if it is found that he acted with “the intent to kill.” Cal. Penal
Code § 190.2(b)–(c). The prosecutor conceded that he had
not proven that the lookout had the intent to kill Lim, so he
told the jury that it could not convict Taylor of the special
circumstance if it found Taylor was the lookout. This made
a difference for Taylor’s sentence. Taylor would only be
eligible for life without parole or the death penalty if the jury
found the special circumstance true. Cal. Penal Code
§ 190.2(a). Otherwise, Taylor would be subject to the lesser
term of 25 years to life with the possibility of parole. Cal.
Penal Code § 190(a).

    At trial Taylor could not deny, in light of his palm print,
that he had helped wipe down the stolen getaway car, but he
otherwise tried to minimize his involvement. His attorney
argued that he wasn’t “necessarily . . . even there at the time
of the robbery.” If he was there, the attorney argued, he had
no idea that the shooter planned to commit a robbery. Or, the
attorney argued to the jury, the shooter might simply have
wanted to execute Lim, not commit a robbery. If the jury
believed this last theory, then even if it found that Taylor was
the shooter, it could not convict Taylor of the first special
circumstance, robbery murder.

    In the face of the evidence against him, Taylor’s defense
amounted to a high-risk gamble. Taylor lost. The jury found
him guilty of first degree felony murder, attempted robbery,
and the unlawful taking of a vehicle, and found true the
allegations that the murder was committed while Taylor was
8                     TAYLOR V. BEARD

engaged in an attempted robbery and that Taylor personally
was armed with and used a firearm.

    After the verdict was rendered but before sentence was
imposed, Taylor told his lawyer that he was present during
the robbery but that someone else was the shooter. Taylor
filed a motion for a new trial or, in the alternative, sought to
strike the findings that he was the shooter and that he had
personally used a firearm. The trial court denied that motion,
and he was sentenced to life without parole. The verdict was
upheld on appeal, and the California Supreme Court denied
Taylor’s petition for review.

    Seven years later, hoping that “somehow [he wouldn’t]
die in prison,” Taylor tried again to convince the State that
he had not been the actual killer, identifying his cousin, Hugh
Hayes, Jr., as the shooter. The Los Angeles Police
Department and Los Angeles County District Attorney’s
Office concluded that Taylor’s assertion was true, and the
district attorney’s office filed an information charging Hayes
with murder. Taylor testified at Hayes’s preliminary hearing
that he and Hayes stole the car and drove around with a
loaded gun looking for a place to rob, and that he had been
with Hayes at the Pioneer Chicken during the attempted
robbery. In 1999, Hayes was tried for the murder but was
acquitted.

    Despite the failure to convict Hayes as the shooter, the
district attorney wrote to the California Board of Prison
Terms requesting that Taylor’s case be returned to the trial
court for resentencing, given the new evidence that Taylor
was not the shooter. The board denied the request.
                          TAYLOR V. BEARD                                  9

    Taylor continued to challenge his conviction and sentence
in state court. In May 2005, while the California Supreme
Court was considering a habeas petition filed by Taylor pro
se, the district attorney again wrote to the California
Department of Corrections and the California Board of Prison
Terms to request that they recommend that the trial court
recall Taylor’s sentence and resentence him. The district
attorney repeated that new evidence showed that Hayes, not
Taylor, was the shooter. The California Supreme Court then
instructed the California Attorney General to submit an
informal response to Taylor’s petition that addressed the
district attorney’s requests.

    In its informal response, the State suggested that the
California Supreme Court issue an order to show cause to the
State regarding Taylor’s claim that he was not the shooter.2
This would allow the State to file a statement of
non-opposition to Taylor’s claim. The State added, however,
that even if Taylor was not the shooter, he was an aider and
abettor, and urged that he was therefore properly convicted of
the underlying crime of felony murder. The State suggested
that the trial court strike the “special-circumstance” and
firearm-use findings and resentence Taylor as an aider and
abettor. In March 2006, the California Supreme Court issued
an order requiring the State to show cause to the trial court
why Taylor was “not factually innocent of the special
circumstance and the firearm-use allegation, and why he
should not be resentenced.”



  2
    We affirmatively commend the Los Angeles district attorney and the
State for their support of Taylor’s resentencing. But for their efforts, it
seems likely that Taylor would still be subject to a sentence of life without
parole.
10                     TAYLOR V. BEARD

     In its response to the order filed in the trial court, the State
conceded that the “special-circumstance” and firearm-use
findings were incorrect. The State again argued, however,
that Taylor was properly convicted of felony murder because
the jury could have found that, as the second man, he aided
and abetted the attempted robbery. The State urged that the
trial court strike the special findings and resentence Taylor as
an aider and abettor. Taylor objected to his resentencing on
the basis that vacating the special circumstance and firearm
use findings also vacated his felony murder conviction and
that the resentencing violated due process and his right to a
jury trial.

    The trial court declined to consider the merits of Taylor’s
argument on the procedural ground that the California
Supreme Court order to show cause only directed inquiry into
the special circumstance and firearm findings and did not
permit Taylor to contest the felony murder conviction itself.
Taylor was resentenced by the trial court to a term of 25 years
to life as an aider and abettor, plus an additional six years
because of his felony record and prior prison time. He was
given credit for the time that he had already served and for
days already earned for good time and work time.

    Taylor appealed, and the California Court of Appeal
affirmed the trial court’s decision for the same procedural
reason: that considering the conviction itself was beyond the
authority granted by the order to show cause issued by the
California Supreme Court. Taylor petitioned to the California
Supreme Court for review of this decision, but the petition
was summarily denied.

   In 2008, after the resentencing and the unsuccessful
appeal, Taylor filed another habeas corpus petition with the
                      TAYLOR V. BEARD                         11

California Supreme Court. Taylor argued that the jury had
already found that he was not the aider and abettor in Lim’s
murder because it had determined that he was the shooter, so
he could not be sentenced for murder as an aider and abettor
under the Sixth Amendment. The petition was summarily
denied.

    Taylor then filed in federal district court a substantively
identical petition for relief under 28 U.S.C. § 2254. The
petition was referred to a magistrate judge for report and
recommendation. The magistrate judge concluded that the
applicable standard was set by the Antiterrorism and
Effective Death Penalty Act (“AEDPA”), 28 U.S.C.
§ 2254(d)(1), whereby habeas relief may only be granted 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.”
The judge concluded that the state court decision was not
unreasonable under that standard and recommended that the
petition be denied. The district court adopted the report and
recommendation and denied Taylor’s petition. It also denied
a certificate of appealability. Taylor sought a certificate from
this court, and we issued a certificate of appealability as to
“whether resentencing appellant as an aider and abettor
violated appellant’s due process and jury trial rights.”

    Taylor filed his appeal, and a divided three-judge panel of
this court reversed, holding that Taylor’s right to jury trial
had been violated and that the State could not continue to
hold him in prison on the theory that he aided and abetted a
robbery when the jury did not make the findings necessary to
convict him of aiding and abetting. It remanded the case to
the district court with instructions to grant the writ. Taylor v.
Cate, 772 F.3d 842 (9th Cir. 2014). A majority of the
12                       TAYLOR V. BEARD

nonrecused active judges on our court subsequently voted to
rehear the case en banc. Taylor v. Cate, 787 F.3d 1241 (9th
Cir. 2015).

II.      Discussion

    We review the decision of the district court de novo.
Gonzalez v. Knowles, 515 F.3d 1006, 1011 (9th Cir. 2008).
Unlike the district court, however, we do not apply the
deferential standard of review that pertains to state court
decisions on the merits under AEDPA, 28 U.S.C. § 2254(d).3
Our review of Taylor’s claim is de novo.

    The crux of Taylor’s claim is that his constitutional right
to a jury trial was violated. The trial court vacated the special
circumstance findings that Taylor was the shooter and had
personally used a firearm. According to Taylor, that required
that his felony murder conviction be vacated. If he was not
the shooter, the felony murder conviction could only rest on
an aiding and abetting theory. California law requires that to
hold a defendant guilty under an aiding and abetting theory,
the jury must find that the defendant acted with the intent to
commit or facilitate the crime. See People v. Beeman, 674
P.2d 1318, 1326 (Cal. 1984) (in bank) (listing elements of
aiding and abetting liability). The jury in Taylor’s trial was


  3
    The State has acknowledged on appeal that the district court erred in
applying the deferential AEDPA standard of review. That standard only
applies to claims that have been “adjudicated on the merits in State court
proceedings.” 28 U.S.C. § 2254(d). The State has not argued that any
California court adjudicated the merits of Taylor’s constitutional claim
that the jury did not make the findings necessary to support the conviction
for felony murder as an aider and abettor for which he was resentenced.
We accordingly apply de novo review. See James v. Ryan, 733 F.3d 911,
914–16 (9th Cir. 2013).
                      TAYLOR V. BEARD                         13

so instructed, having been given California Jury Instruction
Criminal 3.01 (listing elements of aiding and abetting).
Though the jury was correctly instructed, it did not need to
make that finding, which was necessary for a guilty verdict
on an aiding and abetting theory, because it found that Taylor
was the shooter and rejected the alternative possibility that he
was the lookout. Therefore, argues Taylor, his conviction
was not based upon a jury determination.

    The Fifth Amendment “guarantees that no one will be
deprived of liberty without ‘due process of law’; and the
Sixth, that ‘[i]n all criminal prosecutions, the accused shall
enjoy the right to a speedy and public trial, by an impartial
jury.’” United States v. Gaudin, 515 U.S. 506, 509–10
(1995). The Supreme Court has held “that these provisions
require criminal convictions to rest upon a jury determination
that the defendant is guilty of every element of the crime with
which he is charged, beyond a reasonable doubt.” Id. at 510.
Although Taylor alleges that his resentencing violated his
rights under these provisions, we conclude that there was no
constitutional error.

    Taylor’s resentencing was based upon his 1989
conviction for felony murder. Taylor does not allege that his
constitutional rights were violated at the jury trial that
resulted in that conviction. His conviction for felony murder
rested on the jury’s findings that (1) he had the specific intent
to commit robbery and (2) a person was killed during the
attempt or commission of that robbery. See People v. Friend,
211 P.3d 520, 556 (Cal. 2009). Accordingly, Taylor’s felony
murder conviction did in fact rest upon a jury determination
that Taylor was guilty of every element of the crime of felony
murder. The jury was given adequate evidence to find
beyond a reasonable doubt that (1) Taylor was present at the
14                    TAYLOR V. BEARD

attempted robbery, (2) both the shooter and the lookout had
the intent to commit robbery, and (3) that Lim was killed
during the attempted robbery. Taylor does not argue that
there was insufficient evidence to support those findings, or
that the verdict was unfairly obtained by way of prosecutorial
misconduct or any other violation of due process. He
therefore has not established that his Sixth Amendment or
due process rights were violated at his trial.

     Despite his fair trial, Taylor argues that the vacating of
the special circumstance findings vitiated his conviction
because the jury factually did not convict him of felony
murder based upon the lookout theory. Taylor derives
support for his argument from the prosecutor’s admission at
trial that if the jury found he was the lookout, it could not
convict him for the special circumstance of robbery murder
because the prosecution did not prove that the lookout had the
intent to kill, a necessary element for the special circumstance
to apply. In Taylor’s view, because the jury could not convict
him as the lookout for the special circumstance, it likewise
had to reject that theory when determining his culpability for
felony murder.

    We disagree with Taylor’s characterization of the jury’s
findings. At trial the prosecutor argued and the jury
considered evidence supporting a finding that Taylor was
guilty of felony murder under an aiding and abetting theory
as well as under the theory that he was the shooter. The jury
was not required to unanimously choose a particular theory.
See Schad v. Arizona, 501 U.S. 624, 631–32 (1991) (plurality
opinion) (jurors can validly rely on different theories in order
to return a guilty verdict); cf. Bradshaw v. Stumpf, 545 U.S.
175, 184–85 (2005) (defendant’s admission that he was not
the shooter of the victim did not justify withdrawal of his
                           TAYLOR V. BEARD                                 15

guilty plea for aggravated murder because he could be liable
as an aider and abettor). Thus, the jury was not forced to
determine Taylor’s identity as either shooter or lookout until
it considered the special circumstances.4 Although the jury
incorrectly determined Taylor’s identity when considering the
special circumstances, those findings do not prove it rejected
the valid lookout theory when considering Taylor’s guilt for
felony murder.5


 4
   Taylor argues that the jury did not in fact consider holding him guilty
under an aiding and abetting theory because of Jury Instruction No. 2.11.5,
which states as follows:

         There has been evidence in this case indicating that a
         person other than defendant was or may have been
         involved in the crime for which the defendant is on
         trial. Do not discuss or give any consideration to why
         the other person is not being prosecuted in this trial or
         whether he has been or will be prosecuted.

     We are not persuaded by this argument. The instruction only asked
the jury to disregard two things: 1) why the other man was not a defendant
in the trial and 2) whether the other man would be prosecuted. The
instruction did not tell the jury that it could not consider if the second man,
whether lookout or shooter, was likewise guilty. On the contrary, the
instruction validly allowed the jury to determine if both the shooter and
the lookout were guilty because, in order to evaluate whether the lookout
was guilty of felony murder under the aiding and abetting theory, the jury
had to determine if the shooter killed Lim in the course of committing a
robbery. Accordingly, this instruction in no way limited the jury from
considering both theories of felony murder and concluding that Taylor
would be guilty under either one.
 5
     Shortly after Taylor’s conviction, he filed a motion for a new trial or,
in the alternative, for the court to strike the special circumstance findings.
The California Supreme Court’s order in effect gave Taylor the relief he
requested in his new trial motion, albeit years later. Taylor’s assertion that
his resentencing was unfair based upon the striking of the special
16                      TAYLOR V. BEARD

    Taylor has never established his innocence as to the
lookout theory, which is unsurprising given the strength of
the evidence against him. To convict him of felony murder
as an aider and abettor, the jury had to find that Taylor (1)
had “knowledge of the unlawful purpose” of the robber, (2)
intended to commit, encourage, or facilitate the commission
of the robbery, and (3) “by act or advice aid[ed], promote[d],
encourage[d] or instigate[d]” the commission of the robbery.
Beeman, 674 P.2d at 1326. Unlike the aiding and abetting
theory for the special circumstance murder finding, which
required a finding of the intent to kill, the prosecutor only
needed to prove that Taylor had intent to rob in order to
convict him as an aider and abettor to felony murder. See
Friend, 211 P.3d at 574; People v. Sanders, 797 P.2d 561,
586–87 (Cal. 1990). The evidence presented to the jury
indicated that Taylor assisted the shooter in stealing a car
prior to the robbery, sat in the restaurant as a lookout, and
intentionally struck Kaur on the back and threw her to the
floor as she ran out of the kitchen to call for help. Taylor’s
palm print on the car indicated he later helped to wipe down
the getaway car in an attempt to remove evidence. Those acts
demonstrated that Taylor was not some innocent bystander.
Rather, he had the intent to commit — and was an active
participant in — the attempted robbery. It is hard to imagine
how the jury could have concluded otherwise.

    The evidence Taylor submitted after his trial did nothing
to establish his innocence. Instead, it confirmed his guilt.
Taylor admitted that he and the shooter intended to rob a fast
food restaurant that day and stole a car for that purpose. He
also admitted that they had robbed five or six restaurants in


circumstance findings rings hollow in light of the fact that he himself
originally requested such relief.
                     TAYLOR V. BEARD                        17

the previous month. The sentencing judge therefore had no
reason to assume the jury had affirmatively rejected the
lookout theory as invalid in convicting Taylor for felony
murder or that Taylor was innocent of the crime of felony
murder.

    Accordingly, Taylor fails to establish any error under
Apprendi v. New Jersey, 530 U.S. 466 (2000). The
sentencing judge did not find facts that “expose[d] the
defendant to a greater punishment than that authorized by the
jury’s guilty verdict.” Id. at 494. We see no constitutional
unfairness in the sentencing judge’s reliance on a conviction
that had been fully and fairly litigated before a jury.

    Taylor attempts to rely on Griffin v. United States, 502
U.S. 46 (1991), to establish a due process violation based on
the special circumstance findings, but that case does not
support Taylor’s argument. In Griffin, the Supreme Court
declined to vacate a conviction when the prosecution
presented two theories for the jury to consider in returning a
verdict, one of which was not supported by sufficient
evidence. Id. at 47–48, 60. The Court determined that there
was no constitutional error, citing with approval the
traditional common-law rule that juries may be presumed to
reach verdicts on valid factual theories “in the absence of
anything in the record to show the contrary.” Id. at 49–50
(quoting Claassen v. United States, 142 U.S. 140, 146–47
(1891)). Taylor points to the above quoted language,
contending that the special circumstance findings
demonstrated that his constitutional rights were violated
because it proved the jury relied solely upon the factually
incorrect theory. As explained above, however, the vacating
of the special circumstance findings did not prove that the
jury solely relied on the shooter theory, especially when there
18                    TAYLOR V. BEARD

was more than sufficient evidence to find Taylor guilty on the
lookout theory.

     Even if we accepted Taylor’s argument that the jury relied
solely on the theory that he was the shooter, his claim would
still be unpersuasive. Taylor’s contention that the jury
wrongly convicted him of felony murder by accepting the
factually incorrect shooter theory amounts to nothing more
than a freestanding actual innocence claim. See Herrera v.
Collins, 506 U.S. 390, 400 (1993). He does not argue that
there was insufficient evidence in order to convict him on the
shooter theory, that there was any other mistake committed
by the trial court, or that there was an abuse of prosecutorial
power that resulted in the jury’s finding. In other words, he
fails to tie the jury’s mistake of adopting the shooter theory
to a constitutional violation. It is still an open question as to
whether a petitioner “may be entitled to habeas relief based
on a freestanding claim of actual innocence.” McQuiggin v.
Perkins, 133 S. Ct. 1924, 1931 (2013). Even assuming that
such a claim exists, it is doubtful that Taylor’s new evidence
would have entitled him to relief because “the threshold
showing for such an assumed right would necessarily be
extraordinarily high.” Herrera, 506 U.S. at 417. Moreover,
although Taylor produced evidence that he was not the
shooter, he did not produce evidence proving that he was not
the lookout. Accordingly, Taylor would not have been able
to vacate his felony murder conviction because at best he has
established that the jury relied on an incorrect theory, not that
he was factually innocent of the crime.

    The Supreme Court has held that “in state criminal
proceedings the trial is the paramount event for determining
the guilt or innocence of the defendant.” Id. at 416. Because
Taylor received a fair trial, he comes before this court not
                          TAYLOR V. BEARD                                19

innocent but guilty “in the eyes of the law.” Id. at 399–400.
He did not prove his factual innocence of felony murder. The
sentencing judge did not err by resentencing him based upon
that felony murder conviction, and he has not been
incarcerated by the State in violation of his constitutional
rights.

    In sum, this case does not represent the kind of “extreme
malfunction[] in [a] state criminal justice system[]” that may
justify granting habeas relief. Harrington v. Richter, 562
U.S. 86, 102–03 (2011) (quoting Jackson v. Virginia, 443
U.S. 307, 332 n.5 (1979) (Stevens, J., concurring in
judgment)). There is no malfunction of any kind, let alone an
extreme one, when a State voluntarily moves to resentence a
prisoner in response to that prisoner’s belated confession. In
the eyes of the law, he is presumed legally guilty, not
innocent, because he was convicted of felony murder after a
fair trial. Taylor’s evidence showing that he was not the
shooter did not establish his innocence as to felony murder on
the aiding and abetting theory, so he is not entitled to habeas
relief regarding his conviction for felony murder.6

 6
     Even if Taylor had established constitutional error, such error would
be subject to harmless error review. See Arizona v. Fulminante, 499 U.S.
279, 306–07 (1991). Only a “very limited” number of constitutional
errors are deemed “structural” and require automatic reversal. Johnson v.
United States, 520 U.S. 461, 468 (1997). The error alleged by Taylor in
this case is not one of them.

     Any alleged error committed by the sentencing judge stemmed from
the argument that the jury was presented with and allegedly relied upon
a factually false theory of liability. We have held that it is not structural
error for a prosecutor to knowingly put false evidence before a jury.
Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc). There is no
reason why a prosecutor’s inadvertent submission of a false factual theory
should be treated differently. Our conclusion is also supported by the
20                       TAYLOR V. BEARD

III.     Conclusion

    Although the district court erred by applying AEDPA’s
deferential standard in 28 U.S.C. § 2254(d), we reach the
same result as the district court because Taylor has not
established that his constitutional rights have been violated.
We therefore affirm the judgment of the district court denying
Taylor’s petition for a writ of habeas corpus.

       AFFIRMED.




Supreme Court’s analysis in Hedgpeth v. Pulido, 555 U.S. 57, 58, 61
(2008) (per curiam), where the court concluded that the submission of an
invalid legal theory in addition to a valid theory was subject to
harmlessness review. All that separates this case from Pulido is that one
of the theories here was wrong as a matter of fact, not of law, and we see
no principled reason why Pulido’s analysis would not apply equally to this
case.
