FILED

NOT FOR PUBLICATION

APR 1 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TANIKO C. SMITH, No. 19-17514

Petitioner-Appellant, D.C. No. 2:12-cv-00952-APG-VCF v.

BRIAN E. WILLIAMS, Sr.; ATTORNEY MEMORANDUM*

GENERAL FOR THE STATE OF

NEVADA,

Respondents-Appellees.

Appeal from the United States District Court for the District of Nevada Andrew P. Gordon, District Judge, Presiding

Submitted March 31, 2021** San Francisco, California

Before: FERNANDEZ, SILVERMAN, and N.R. SMITH, Circuit Judges.

Nevada state prisoner Taniko C. Smith appeals from the district court’s

judgment denying his 28 U.S.C. § 2254 habeas corpus petition. We have

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). jurisdiction under 28 U.S.C. § § 1291 and 2253. We review the district court’s

decision de novo, see Smith v. Ryan, 823 F.3d 1270, 1278 (9th Cir. 2016), and we

affirm.

Smith contends that the aiding and abetting instruction given at his trial

violated due process because it eliminated the specific intent element required to

prove murder and attempted murder. Under the Antiterrorism and Effective Death

Penalty Act (AEDPA), we give considerable deference to state court decisions.

Habeas relief may only be granted if the adjudication “resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the United States” or “resulted

in a decision that was based on an unreasonable determination of the facts in light

of the evidence presented in the state court proceeding.”1 28 U.S.C. § 2254(d); see

also Harrington v. Richter, 562 U.S. 86, 100 (2011). Neither is present in this

case. The challenged instruction amply informed the jury of the requisite mental

state and did not have “the effect of relieving the State of the burden of proof” on

this critical question. See Sandstrom v. Montana, 442 U.S. 510, 521 (1979); see

also Waddington v. Sarausad, 555 U.S. 179, 190-92 (2009).

1 Even if we were to agree with Smith that de novo review applied, his claim would still fail. 2

AFFIRMED.

3