Jerry Brown v. Raymond Madden ( 2021 )


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  •                                                                                    FILED
    NOT FOR PUBLICATION
    SEP 9 2021
    UNITED STATES COURT OF APPEALS                          MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JERRY BROWN,                                      No.    20-16903
    Petitioner-Appellant,               D.C. No. 4:17-cv-02691-PJH
    v.
    MEMORANDUM*
    RAYMOND MADDEN, Warden,
    Respondent-Appellee.
    Appeal from the United States District Court
    for the Northern District of California
    Phyllis J. Hamilton, District Judge, Presiding
    Submitted September 3, 2021**
    San Francisco, California
    Before: SCHROEDER, RAWLINSON, and BYBEE, Circuit Judges.
    Jerry Brown, a California state prisoner, appeals the district court’s denial of
    his pro se habeas corpus 
    28 U.S.C. § 2254
     petition. He challenges a conviction on
    multiple counts of sex-related offenses, contending that the state trial court’s
    *
    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).
    questioning of Brown and his wife violated Brown’s due process right to a fair trial
    under the Fourteenth Amendment.
    1. The California Court of Appeal applied California’s contemporaneous
    objection rule, holding that Brown’s failure to object to the trial court’s questioning
    waived this issue for appeal, and rejecting Brown’s argument that any objection
    would have been futile. Its determination was reasonable. The district
    court held that Brown’s claim was, therefore, procedurally defaulted under
    California law and that this constituted an adequate and independent ground for
    rejecting Brown’s petition. See Coleman v. Thompson, 
    501 U.S. 722
    , 729 (1991);
    Murray v. Schriro, 
    745 F.3d 984
    , 1015 (9th Cir. 2014).
    2. The district court also correctly ruled that, even if the claim were not
    procedurally defaulted, Brown could not show that the state court’s rejection of his
    judicial misconduct claim “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); Greene v. Fisher, 
    565 U.S. 34
    , 38 (2011). In determining whether there was a denial of due process, the courts
    do not look only to whether the trial court committed misconduct, but to whether
    the court’s actions “rendered the trial so fundamentally unfair as to violate federal
    due process under the United States Constitution.” Duckett v. Godinez, 
    67 F.3d 2
    734, 740 (9th Cir. 1995). The state court held that the trial court’s questions did
    not violate that standard because the court’s questions were chiefly for the purpose
    of clarification, and the judge did not assume the jury's role by determining the
    credibility of the witnesses.
    The state court’s holding was not in violation of clearly established law.
    Brown relies principally on Quercia v. United States, 
    289 U.S. 466
     (1933) to argue
    that the trial judge’s conduct amounted to a violation of his due process rights.
    There the trial judge took over the jury’s role by assessing the credibility of the
    defendant for the jury and telling the jury that the defendant was likely lying. 
    Id. at 472
    . The Supreme Court held that the judge’s characterization of the defendant
    “was of a sort most likely to remain firmly lodged in the memory of the jury and to
    excite a prejudice which would preclude a fair and dispassionate consideration of
    the evidence.” 
    Id. at 472
    . This is not such a case. The state appellate court’s
    ruling concerning the trial judge’s conduct in this case did not violate clearly
    established law.
    AFFIRMED.
    3
    

Document Info

Docket Number: 20-16903

Filed Date: 9/9/2021

Precedential Status: Non-Precedential

Modified Date: 9/9/2021