Jermaine Aaron Moore v. KELLY HARRINGTON, Warden

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERMAINE AARON MOORE,
Petitioner - Appellant,
v.
KELLY HARRINGTON, Warden,
Respondent - Appellee.
No. 10-55030
D.C. No. 2:07-cv-02277-CAS-
FMO
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted January 8, 2013**
Pasadena, California
Before: KOZINSKI, Chief Judge, McKEOWN and M. SMITH, Circuit
Judges.
The California Court of Appeal’s ruling wasn’t “contrary to,” and didn’t
involve “an unreasonable application of, clearly established Federal law.” 28
FILED
JAN 10 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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page 2
U.S.C. § 2254(d)(1); see also Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
The state court considered the totality of the circumstances, and it wasn’t
unreasonable in concluding that the trial judge’s comments weren’t coercive. See
Lowenfield v. Phelps, 484 U.S. 231, 237–41 (1988); see also Wong v. Smith, 131
S. Ct. 10, 11–12 (2010) (Alito, J., dissenting from denial of certiorari). The judge
made his comments only after the jury, which had spent relatively little time
deliberating, indicated it was having trouble reaching a verdict. He made it clear
that it was acceptable for the jury not to reach a verdict, and as in Lowenfield, 484
U.S. at 240 & n.4, the defense attorney didn’t object to the judge’s remarks. In
fact, the jury in this case spent slightly more time deliberating after the judge’s
comments than did the Lowenfield jury. Id. at 235.
AFFIRMED.

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