NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 14 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

MONICA MCCARRICK, No. 20-17311

Petitioner-Appellant, D.C. No. 2:17-cv-02652-JKS

v.

MEMORANDUM*

JANELLE ESPINOZA,

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California James K. Singleton, District Judge, Presiding

Argued and Submitted March 11, 2022 San Francisco, California

Before: WALLACE, S.R. THOMAS, and McKEOWN, Circuit Judges.

Petitioner-Appellant Monica McCarrick appeals from the district court’s

denial of her petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. We

have jurisdiction under 28 U.S.C. §§ 1291, 2253. We review the district court’s

decision to deny a § 2254 habeas petition de novo and its findings of fact for clear

error, see McClure v. Thompson, 323 F.3d 1233, 1240 (9th Cir. 2003), and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

provides that “a district court shall entertain an application for a writ of habeas

corpus in behalf of a person in custody pursuant to the judgment of a State court only

on the ground that he is in custody in violation of the Constitution or laws or treaties

of the United States.” 28 U.S.C. § 2254(a). Thus, we cannot grant federal habeas

relief unless the decision of the state court was “contrary to, or involved an

unreasonable application of, clearly established Federal law” 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.” 28 U.S.C. § 2254(d). In addition,

“state court findings of fact are presumed correct unless rebutted by clear and

convincing evidence.” McClure, 323 F.3d at 1241 (citing 28 U.S.C. § 2254(e)(1)).

This is a high standard that is meant to be “difficult to meet” because the role of a

federal court is limited to guarding against “extreme malfunctions in the state

criminal justice systems” and not performing “error correction.” Greene v. Fisher,

565 U.S. 34, 38 (2011) (citation omitted). “When applying these standards, the

federal court should review the ‘last reasoned decision’ by a state court . . . .”

Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004) (citation omitted). In this

case, the last reasoned decision by a state court is the California Court of Appeal’s

decision affirming the state trial court’s judgment.

On appeal to our court, McCarrick argues that the district court erred in

2 denying her habeas claim that the state trial court committed instructional error by

not modifying CALCRIM No. 627 to permit the jury to consider McCarrick’s

paranoid delusions in resolving whether she had acted with premeditation and

deliberation.1 At the outset, we hold that McCarrick’s claim is procedurally

defaulted and barred from review. As a threshold matter, federal courts are not

allowed to “review a question of federal law decided by a state court if the decision

of that court rests on a state law ground that is independent of the federal question

and adequate to support the judgment.” Coleman v. Thompson, 501 U.S. 722, 729

(1991). “This rule applies whether the state law ground is substantive or

procedural.” Id.

Here, the California Court of Appeal held that McCarrick forfeited the claim

1 Similar to McCarrick’s direct appeal to the California Court of Appeal, her habeas petition before the district court raised three claims: (1) the trial court committed instructional error by not modifying CALCRIM No. 627 to permit the jury to consider McCarrick’s paranoid delusions in resolving whether she had acted with premeditation and deliberation; (2) there was no substantial evidence to support the jury’s sanity verdict because the jury could not reasonably reject the opinions of three defense experts that McCarrick had been legally insane; and (3) the trial court committed instructional error with its instruction of CALCRIM No. 3450, which instructs the jury on whether a defendant is legally insane. After denying her petition, the district court granted a certificate of appealability only to the first two claims. On appeal before our court, however, McCarrick raises the first certified issue as well as the third uncertified issue. Because the third claim is uncertified, we decline to address it and we decline to expand the certificate of appealability. See, e.g., Ochoa v. Davis, 16 F.4th 1314, 1346 (9th Cir. 2021). Thus, we only address the first certified claim.

3 because she failed to ask the trial court to modify CALCRIM No. 627 to include

delusions. Under California law, “a party may not complain on appeal that an

instruction correct in law and responsive to the evidence was too general or

incomplete unless the party has requested appropriate clarifying or amplifying

language.” People v. Andrews, 776 P.2d 285, 295 (Cal. 1989). The California Court

of Appeal therefore rejected McCarrick’s argument on state law grounds. We do

not review that decision because it rests on independent, see, e.g., People v.

Williams, 16 Cal. 4th 153, 208–09 (Cal. 1997), and adequate, Fairbank v. Ayers, 650

F.3d 1243, 1256 (9th Cir. 2011), state grounds. See Coleman, 501 U.S. at 729–30.

In addition, McCarrick failed to show cause and prejudice to excuse her

procedurally defaulted claim. See Sawyer v. Whitley, 505 U.S. 333, 338 (1992) (“[A]

court may [] reach the merits of . . . procedurally defaulted claims in which the

petitioner failed to follow applicable state procedural rules in raising the claims” if

a “habeas petitioner shows cause and prejudice.” (internal citations omitted)

(emphasis removed)). “A showing of cause ‘must ordinarily turn on whether the

prisoner can show that some objective factor external to the defense impeded [the

prisoner’s] efforts to comply with the State’s procedural rule.’” Robinson, 360 F.3d

at 1052 (citation omitted). We reject McCarrick’s argument that cause and prejudice

exist because it would have been futile to ask the trial court to modify the instruction.

We agree with the California Court of Appeal that the “record does not support

4 [McCarrick’s] contention.” The state trial court considered the issue of whether

McCarrick can introduce evidence about her fears that her fiancé, Robert Paulson,

was going to harm her or the girls, a delusional belief based on paranoia. Referring

to this fear, the trial court was unsure whether to call it “hallucination” or “delusion”

but ultimately decided it was going to allow McCarrick to present the evidence as

“hallucinations” to do with “her belief that the children were in imminent peril of

being kidnapped and tortured, and therefore this was her alternative as she saw it.”

The trial court asked both parties if everyone was on the same page and both parties

responded “yes.” Thus, it is clear that at the time the trial court made its ruling on

the issue, both parties understood that the “hallucinations” in question included

McCarrick’s delusional beliefs that her children were in danger. Nothing on the

record suggests that there is an external factor that impeded McCarrick’s efforts to

comply with California’s procedural rule or that it would have been futile for

McCarrick to ask the trial court to modify the instruction to specifically include the

word “delusions” alongside “hallucinations.” See Engle v. Isaac, 456 U.S. 107, 130

& n.36 (1982). Therefore, we conclude that McCarrick failed to establish cause and

prejudice to excuse her procedural default.

Moreover, even if McCarrick’s procedurally defaulted claim is excused, the

district court did not err in denying it on the merits. For the following reasons, the

California Court of Appeal decision that the state trial court did not err in failing to

5 modify CALCRIM No. 627 sua sponte is not contrary to or an unreasonable

application of federal law. In general, “federal habeas corpus relief does not lie for

errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Thus, “a state

court’s interpretation of state law, including one announced on direct appeal of the

challenged conviction, binds a federal court sitting in habeas corpus.” Bradshaw v.

Richey, 546 U.S. 74, 76 (2005). Because jury instructions in a state trial are matters

of state law, an instructional error “does not alone raise a ground cognizable in a

federal habeas corpus proceeding.” Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th

Cir. 1988) (citation omitted). Rather, “[t]he error must so infect the entire trial that

the defendant was deprived of his right to a fair trial guaranteed by the due process

clause of the fourteenth amendment.” Id. (citation omitted). When an instruction is

subject to an erroneous interpretation, the “proper inquiry in such a case 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.”

Boyde v. California, 494 U.S. 370, 380 (1990).

McCarrick’s main argument is that hallucinations are clearly different from

delusions and that there was a reasonable likelihood that the jury would not consider

her irrational belief that Paulson was going to harm her and her children as

hallucinations under CALCRIM No. 627. First, it is not clear if the language of

CALCRIM No. 627 facially excludes McCarrick’s delusional beliefs. CALCRIM

6 No. 627 provides that a hallucination is a “perception not based on objective reality”

or in other words when a person is “perceiving something that is not actually present

or happening.” The definition of hallucination provided to the jury does not

expressly limit it to only sensory perceptions not grounded in reality and may very

well include her delusional beliefs. Second, the record shows that the jury was

repeatedly presented with evidence that McCarrick had irrational beliefs that

Paulson intended to harm her and her children. In particular, the defense counsel

argued that the hallucination instruction was important because McCarrick had

irrational beliefs that Paulson intended to kill her and harm her girls. Furthermore,

the State did not challenge that McCarrick’s irrational and delusional beliefs are not

hallucinations. Rather, the State focused on arguing that McCarrick did not appear

to have those irrational beliefs the day of the killings.

Finally, McCarrick has not cited any Supreme Court authority or federal law

that distinguishes delusions from hallucinations or held that the California Court of

Appeal’s ruling is contrary to federal law. Indeed, even if the instruction was an

error, the Supreme Court has held that “not every ambiguity, inconsistency, or

deficiency in a jury instruction rises to the level of a due process violation.”

Middleton v. McNeil, 541 U.S. 433, 437 (2004). The jury heard three days of

testimony from numerous witnesses about McCarrick’s irrational fear of Paulson.

Considering the heightened standard for habeas review, we conclude that the

7 California Court of Appeal’s decision is not contrary to or an unreasonable

application of federal law, as it did not “infect[] the entire trial” resulting in a

conviction that violates due process. Middleton, 541 U.S. at 437.

AFFIRMED.

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