NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 22 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ARMANDO B. CORTINAS, Jr., No. 20-16227

Petitioner-Appellant, D.C. No. 3:10-cv-00439-LRH-WGC v.

STATE OF NEVADA, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding

Submitted June 18, 2021** San Francisco, California

Before: BRESS and BUMATAY, Circuit Judges, and RAYES,*** District Judge.

Armando Cortinas, Jr., appeals from the denial of his petition for a writ of

habeas corpus. In 2006, Cortinas was convicted of first-degree murder by a jury in

* 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). *** The Honorable Douglas L. Rayes, United States District Judge for the District of Arizona, sitting by designation. Nevada state court. The jury returned a general verdict of guilty after being

instructed on two alternative theories of murder: premeditated murder and felony

murder. On direct appeal, the Nevada Supreme Court held that the felony murder

theory was erroneously instructed, but it determined that the instructional error was

harmless because a properly instructed jury would have convicted Cortinas of

premeditated murder. Cortinas then unsuccessfully sought habeas relief in state

court. Thereafter, Cortinas petitioned the district court for habeas relief pursuant to

28 U.S.C. § 2254. The district court denied relief, and Cortinas appealed. We

review de novo, see Runningeagle v. Ryan, 686 F.3d 758, 766 (9th Cir. 2012), and

affirm.

Under § 2254(d), a writ may issue for a person in custody pursuant to a state

court’s judgment only if: (1) the decision is “contrary to . . . clearly established

Federal law, as determined by the Supreme Court of the United States,” (2) the

decision “involved an unreasonable application of” such clearly established law, or

(3) the decision was “based on an unreasonable determination of the facts in light of

the evidence presented” in state court. We apply the § 2254 analysis to the Nevada

Supreme Court’s decision because it is the “last reasoned state court decision.”

Sanchez v. Davis, 994 F.3d 1129, 1138 (9th Cir. 2021).

Cortinas primarily argues that the Nevada Supreme Court applied a

harmlessness standard that is “contrary to” Supreme Court precedent. See Williams

2 v. Taylor, 529 U.S. 362, 405 (2000) (holding that a decision is “contrary to” Supreme

Court precedent where “the state court applies a rule that contradicts the governing

law set forth in [the Court’s] cases”). But his argument fails.

The Nevada Supreme Court relied on Chapman v. California, 386 U.S. 18

(1967), which held that for “a federal constitutional error [to] be held harmless, the

court must be able to declare a belief that it was harmless beyond a reasonable

doubt.” Id. at 24. The court also cited Neder v. United States, 527 U.S. 1 (1999),

which held that instructional errors are harmless under Chapman if it is “clear

beyond a reasonable doubt that a rational jury would have found the defendant guilty

absent the error[.]” Id. at 18. This is the correct harmlessness standard on direct

review. Brecht v. Abrahamson, 507 U.S. 619, 630 (1993). And the Nevada Supreme

Court applied this standard when it concluded beyond a reasonable doubt that a

properly instructed jury would have found that Cortinas was guilty of premeditated

murder.

Cortinas argues that the instructional error was harmless only if the court

could determine with reasonable certainty that the jury actually convicted him on the

premeditated murder theory. See Riley v. McDaniel, 786 F.3d 719, 726 (9th Cir.

2015) (stating that “the relevant question is not simply whether we can be reasonably

certain that the jury could have convicted [a petitioner] based on the valid theory

. . . , but whether we can be reasonably certain that the jury did convict him based

3 on the valid . . . theory” (simplified)). In Cortinas’s view, the jury likely convicted

him under the invalid but factually uncontested felony murder theory, rather than the

valid but contested premeditated murder theory.

While Riley is Ninth Circuit precedent, relief under § 2254(d) turns on

“clearly established Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d); see White v. Woodall, 572 U.S. 415, 420 n.2 (2014)

(“[A] lower court may not consult its own precedents, rather than those of [the

Supreme] Court, in assessing a habeas claim governed by § 2254.” (simplified)).

Furthermore, as Riley itself confirms, showing that the jury did convict under a

correct alternative theory is only one way of demonstrating the jury would have

convicted if properly instructed, which remains the ultimate inquiry. See Riley, 786

F.3d at 726; see also Babb v. Lozowsky, 719 F.3d 1019, 1034 (9th Cir. 2013)

(describing the inquiry as whether “the jury would still have convicted the petitioner

on the proper instructions”), overruled on other grounds as stated in Moore v.

Helling, 763 F.3d 1011, 1013 (9th Cir. 2014).

Nor did the Nevada Supreme Court decision involve an “unreasonable

application of” the law or an “unreasonable determination of the facts.” 28 U.S.C.

§ 2254(d). Cortinas bears the burden of showing that the state court’s decision was

“so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fair-minded disagreement.”

4 Sanchez, 994 F.3d at 1138. “Even a strong case for relief does not mean the state

court’s [decision] was unreasonable.” Id.

It was not unreasonable for the state court to conclude that a properly

instructed jury would have found Cortinas guilty under the premeditation theory.

The evidence for premeditated murder was overwhelming. Cortinas strangled the

victim for nearly an hour, paused to check whether she was still breathing, changed

course by attempting to break her neck, and then drove her into the desert and

stabbed her three times to ensure she drowned in her own blood. See Leonard v.

State, 17 P.3d 397, 411 (Nev. 2001) (en banc) (holding that the four-minute duration

of a strangulation could support an inference of willfulness, deliberation, and

premeditation); Byford v. State, 994 P.2d 700, 714–15 (Nev. 2000) (en banc)

(holding that willfulness, deliberation, and premeditation may be formed in a short

period of time).

AFFIRMED.

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