Ahkin Raymond Mills v. GARY SWARTHOUT, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AHKIN RAYMOND MILLS,
Petitioner-Appellant,
v.
GARY SWARTHOUT, Warden,
Respondent-Appellee.
No. 17-17197
D.C. No. 5:14-cv-00255-LHK
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Argued and Submitted December 20, 2018
San Francisco, California
Before: BOGGS,** PAEZ, and OWENS, Circuit Judges.
Petitioner-Appellant Ahkin Raymond Mills shot and killed a stranger at a
train station, and after a jury trial in state court, he was convicted of first-degree
murder. The California Supreme Court unanimously affirmed his conviction.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Danny J. Boggs, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
FEB 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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People v. Mills, 286 P.3d 754 (Cal. 2012).1 He then petitioned for a writ of habeas
corpus. See 28 U.S.C. § 2254. The district court denied his petition. We affirm.
We review the district court’s decision de novo. Lopez v. Thompson, 202
F.3d 1110, 1116 (9th Cir. 2000) (en banc). To obtain habeas relief, Mills must
show that the California Supreme 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.” 28 U.S.C. § 2254(d)(1). He cannot clear this
high bar.
Mills challenges one jury instruction from the guilt phase of his bifurcated
trial2 as a violation of due process. The trial court instructed the jury that, “[f]or the
purpose of reaching a verdict in the guilt phase of this trial, you are to conclusively
presume that the defendant was legally sane at the time the offenses [are] alleged
to have occurred.” Mills, 286 P.3d at 763 n.10. The California Supreme Court
unanimously rejected Mills’s claim that this instruction unconstitutionally “told the
jury to presume the existence of a mental state critical to the state’s burden of
proof” and to disregard mental-health evidence relevant to his defense theory. Id.
at 756.
1 The California Supreme Court’s opinion details the facts and state-court
procedural history. Id. at 756–57.
2 Because he raised an insanity defense, his trial was split into guilt and sanity
phases. See Cal. Penal Code § 1026(a).

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Mills now argues that the California Supreme Court evaluated his due-
process claim under the wrong standard, and that it improperly relied on the other
guilt-phase jury instructions and on Middleton v. McNeil, 541 U.S. 433 (2004). He
also contends that our decisions in Hall v. Haws, 861 F.3d 977 (9th Cir. 2017),
Stark v. Hickman, 455 F.3d 1070 (9th Cir. 2006), and Patterson v. Gomez, 223
F.3d 959 (9th Cir. 2000), compel us to grant him habeas relief. We disagree.
First, the California Supreme Court evaluated Mills’s due-process claim
under the correct standard. In Boyde v. California, the United States Supreme
Court held that when a defendant claims that “a single jury instruction . . . is
ambiguous and therefore subject to an erroneous interpretation . . . the proper
inquiry . . . is whether there is a reasonable likelihood that the jury has applied the
challenged instruction in a way that prevents the consideration of constitutionally
relevant evidence.” 494 U.S. 370, 380 (1990). The California Supreme Court used
this reasonable-likelihood standard. Mills, 286 P.3d at 763. Mills relies on pre-
Boyde cases applying a distinct “reasonable juror” test, but Boyde supplanted this
earlier standard. Estelle v. McGuire, 502 U.S. 62, 72 n.4 (1991) (explaining that
Boyde “made it a point to settle on a single standard of review for jury
instructions—the ‘reasonable likelihood’ standard”).
Second, the California Supreme Court did not unreasonably apply federal
law by relying on the other guilt-phase jury instructions and on the United States

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Supreme Court’s decision in Middleton. Since Boyde, the Court has repeatedly
decided constitutional challenges to a single jury instruction by looking at all of the
instructions together, not the challenged instruction in isolation. See, e.g.,
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.”). See also Ayers v. Belmontes,
549 U.S. 7, 19 (2006); Brown v. Payton, 544 U.S. 133, 146–47 (2005).
As for Middleton, Mills is right that the challenged instruction in that case is
not comparable to the one here, but the California Supreme Court did not conflate
the substance of the two instructions. It cited Middleton only for the
methodology—analyzing the challenged jury instruction in light of the other
instructions and the closing arguments. Mills, 286 P.3d at 764–65. Thus, the
California Supreme Court did not err, much less unreasonably apply federal law.
Third, our decisions in Hall, Stark, and Patterson do not require us to grant
Mills’s petition. Hall is not germane to this case, as it involved a different kind of
jury instruction that is not evaluated under the Boyde test. 861 F.3d at 989–94.
Stark and Patterson are more relevant: Like this case, both involved California
murder convictions after bifurcated trials, presumption-of-sanity jury instructions,
and mental-health evidence (which the defendants feared the jury would wrongly
disregard because of the challenged instructions). We granted habeas relief in both

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cases. Stark, 455 F.3d at 1078–80; Patterson, 223 F.3d at 966–68.
But they do not require the same result here, primarily because of an
important difference in the language of the challenged instructions. In Stark and
Patterson, the instructions were to presume the defendant was “sane” at the time of
the offense, but here, the instruction was to presume Mills was “legally sane.”
Compare Stark, 455 F.3d at 1075, and Patterson, 223 F.3d at 964, with Mills, 286
P.3d at 763 n.10 (emphasis added). The instructions’ use of “sane” instead of
“legally sane” was central to our analysis in Stark and Patterson. Stark, 455 F.3d at
1078 (finding a due-process violation in part because the jury was not “warned that
‘sane’ was being used in a manner other than the conventional lay sense”);
Patterson, 223 F.3d at 966 (explaining that “if a jury is instructed that a defendant
must be presumed ‘sane’ . . . a reasonable juror could well conclude that he or she
must presume that the defendant had no . . . mental disease, defect, or disorder”).
Here, by using the phrase “legally sane,” the trial court warned the jury that
“sane” was not being used in its conventional lay sense. The insertion of “legally”
reduced the risk of the jury misinterpreting the challenged instruction and
disregarding Mills’s mental-state evidence. In addition, Mills’s guilt-stage theory
of imperfect self-defense relied less on mental-health evidence than the theories in
Stark and Patterson. See Mills, 286 P.3d at 763; Stark, 455 F.3d at 1075;
Patterson, 223 F.3d at 965. For both of these reasons, Mills’s jury was less likely

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to apply the challenged instruction in an unconstitutional way than the juries in
Stark and Patterson, and those cases do not control.
Thus, we AFFIRM the district court’s denial of Mills’s § 2254 petition.

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