Eddie Lopez Montanez v. Jeffrey Beard ( 2019 )

NOT FOR PUBLICATION FILED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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