Ryan Bui v. Anthony Hedgpeth , 588 F. App'x 592 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RYAN BUI, No. 13-16502
Petitioner - Appellant, D.C. No. 3:11-cv-03167-SI
v.
ANTHONY HEDGPETH, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Submitted December 11, 2014**
San Francisco, California
Before: O’SCANNLAIN, FISHER, and HURWITZ, Circuit Judges.
Ryan Bui appeals the district court’s denial of his 28 U.S.C. § 2254 petition for
habeas corpus. We have jurisdiction under 28 U.S.C. § 1291, and affirm.
1. The California Court of Appeal reasonably determined that the exclusion
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of Bui’s family and friend from a brief portion of the voir dire proceedings was a “de
minimis” violation of the Sixth Amendment right to a public trial. See United States
v. Rivera, 682 F.3d 1223, 1229 (9th Cir. 2012) (stating that reversal is not required for
“trivial” violations of right to public trial).
2. The Court of Appeal’s factual determinations were not unreasonable in
light of the evidence presented in the state court proceedings. 28 U.S.C. § 2254(d)(2).
With respect to Bui’s particular factual arguments:
a. The Court of Appeal did not find that the exclusion of Bui’s
spectators was “inadvertent.”
b. The Court of Appeal was not required to make a factual finding on
the “relative importance of voir dire generally.” See Taylor v. Maddox, 366 F.3d 992,
1001 (9th Cir. 2004) (holding that a failure to make a factual finding supports a grant
of habeas corpus when that finding “goes to a material factual issue that is central to
petitioner’s claim”).
c. The Court of Appeal discussed security concerns in analyzing prior
California case law, but it did not make a specific finding on the issue, and Bui does
not explain how any such finding would be “highly probative and central to” his
claim. Id.d. Whether three or four spectators were excluded from voir dire
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likewise was neither material nor central to Bui’s claim. Id.e. The Court of Appeal made no finding that other spectators
remained in the courtroom after Bui’s family and friend left; its citation to cases
involving such a finding was not itself a finding.
f. The Court of Appeal’s determination that Bui’s family and friend
were prevented from being in the courtroom for forty minutes was reasonable in light
of the evidence before it.
g. The Court of Appeal did not improperly suggest that Bui’s family
and friend were not “preexisting spectators,” and this factual determination would not
be “highly probative and central to” his claim. Id.AFFIRMED.
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