Demarkas King v. Anthony Hedgpeth , 472 F. App'x 818 ( 2012 )

FILED
NOT FOR PUBLICATION APR 30 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DEMARKAS S. KING, No. 10-17846
Petitioner - Appellant, D.C. No. 2:08-cv-01524-GEB-
DAD
v.
ANTHONY HEDGPETH, Warden, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted April 20, 2012
San Francisco, California
Before: SCHROEDER, THOMAS, and GRABER, Circuit Judges.
Petitioner Demarkas S. King was convicted in California state court after a
jury trial for murder and attempted murder. He appeals the district court’s
dismissal of his 28 U.S.C. § 2254 petition in which he challenged the integrity of
the jury verdict. We affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
The state trial court held a full evidentiary hearing on Juror No. 4’s multiple
claims of juror misconduct, including her own belatedly perceived bias. The court
found that she was not credible and that no juror misconduct had occurred. The
state court described the juror’s efforts to undo the verdict as “buyer’s remorse.”
The parties dispute whether the state court’s adjudication should be
reviewed under the standard set forth in 28 U.S.C. § 2254(d)(2) or (e)(1).
Regardless of which provision applies, however, the decision of the state trial court
remains a credibility determination that is entitled to substantial deference. See
Maxwell v. Roe, 628 F.3d 486, 503 (9th Cir.), cert. denied, 132 S. Ct. 611 (2010).
That ruling was neither unreasonable nor clearly erroneous, because the record
contained ample support for the court’s determination. Juror No. 4’s version of
what happened was substantially contradicted by the testimony of virtually all of
the other jurors and, at most, only partially corroborated by the alternate juror and
Juror No. 2.
There was no violation of King’s federal rights, and the petition was
properly denied.
AFFIRMED.
2