Gonzales v. Adams , 370 F. App'x 867 ( 2010 )

FILED
NOT FOR PUBLICATION MAR 12 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROLAND GONZALES, No. 07-56738
Petitioner - Appellant, D.C. No. CV-05-05745-RGK
v.
MEMORANDUM *
DARRELL G. ADAMS, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted February 5, 2010
Pasadena, California
Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.
Roland Gonzales, a California prisoner, appeals from the district court’s
denial of his petition for a writ of habeas corpus. We affirm. Although a
“procedural-bar issue should ordinarily be considered first” we proceed directly to
the merits, as they are “easily resolvable against the habeas petitioner.” Lambrix v.
Singletary, 520 U.S. 518, 524-25 (1997).
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court properly concluded that the state court’s decision finding
no juror misconduct in testing the sharpness of the knife was neither contrary to,
nor 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).
“[T]he ‘evidence developed’ against a defendant shall come from the witness stand
in a public courtroom where there is full judicial protection of the defendant’s right
of confrontation, of cross-examination, and of counsel.” Turner v. Louisiana, 379
U.S. 466, 472-73 (1965). However this standard does not bar jurors from
manipulating an object in evidence during deliberations to test its properties. See,
e.g., United States v. George, 56 F.3d 1078, 1083-84 (9th Cir. 1995).
2. The district court also did not err in upholding the state court’s finding that
the jury foreman was not biased against the defendant. “In essence, the right to
jury trial guarantees to the criminally accused a fair trial by a panel of impartial,
‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). However the
conduct Gonzales attributes to the foreman does not constitute the clear and
convincing evidence needed to rebut the presumption of correctness afforded to the
state court determination that there was no evidence of bias. See 28 U.S.C. §
2254(e)(1); cf. Dyer v. Calderon, 151 F.3d 970, 981 (9th Cir. 1998) (en banc).
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3. Even assuming that speculation among jurors concerning punishment was
constitutionally inappropriate, see Grotemeyer v. Hickman, 393 F.3d 871, 880 (9th
Cir. 2004), the discussion did not have a “substantial and injurious effect or
influence in determining the jury’s verdict” and was therefore harmless. Fry v.
Pliler, 551 U.S. 112, 116, 121-22 (2007) (internal quotation marks and citations
omitted). The two jurors allegedly influenced by the discussion and who sent
letters to the judge requesting leniency at sentencing both stated that despite their
sentencing concerns, they believed Gonzales possessed the malice necessary to
support a guilty verdict for second degree murder.
AFFIRMED.
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