Travis D. Reay v. A. K. SCRIBNER, Warden

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRAVIS D. REAY,
Petitioner - Appellant,
v.
A. K. SCRIBNER, Warden; EDMUND G.
BROWN, Jr., Attorney General for the
State of California,
Respondents - Appellees.
No. 08-15973
D.C. No. 2:02-cv-02067-GEB-
DAD
MEMORANDUM *
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted February 8, 2010
San Francisco, California
Before: GOODWIN, BERZON and IKUTA, Circuit Judges.
Travis Reay appeals the denial of his petition for writ of habeas corpus.
Reay was convicted by a jury in California of first-degree murder with an
enhancement for personal use of a weapon. Because his petition is subject to the
FILED
MAR 05 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Anti-Terrorism and Effective Death Penalty Act of 1996, claims that a state court
has denied on the merits may not result in federal habeas relief unless the state
court’s ruling (1) was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the United
States,” or (2) was “based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d). We
affirm.
Denial of Reay’s motion to sever trial from that of his wife and co-
defendant, Nettie Reay, did not violate Reay’s due process rights. Denial of a
motion to sever trial violates due process “only if there is a serious risk that a joint
trial would compromise a specific right of one of the defendants, or prevent a jury
from making a reliable judgement about guilt or innocence.” Zafiro v. United
States, 506 U.S. 534, 539 (1993). Here, the domestic violence evidence was far
less strong and graphic than the evidence implicating Reay in the killing, and any
prejudice was lessened by the trial court’s instructions to the jury that it was to use
the domestic violence evidence for proper purposes. Additionally, there was other
properly admitted evidence of domestic violence, as well as evidence from other
eyewitnesses who essentially corroborated Nettie Reay’s testimony about Reay’s
involvement in the murder, so any prejudicial impact of the joint trial was further

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lessened. The California Court of Appeal’s conclusion that Nettie Reay’s duress
defense did not unfairly prejudice Reay was neither contrary to nor an
unreasonably application of federal law.
Nor was Reay denied a fair trial because of a juror’s failure to disclose
childhood experiences with domestic violence and violent discipline. On receiving
allegations of the juror’s actual bias, the trial court properly held a hearing, see
Smith v. Phillips, 455 U.S. 209, 215 (1982), and concluded that the juror had
answered voir dire questions honestly and could act impartially. Given that honest
yet mistaken answers to voir dire questions rarely amount to constitutional
violations, and even dishonest answers may not be fatal if a juror can act
impartially, see McDonough Power Equip. v. Greenwood, 464 U.S. 548, 555-56
(1984), we cannot say that the California Court of Appeal erred in upholding that
decision. Nor is this an exceptional circumstance warranting a finding of implied
bias. See Dyer v. Calderon, 151 F.3d 970, 980-81 (9th Cir. 1998) (en banc); see
also McDonough, 464 U.S. at 556-57 (Blackmun, Stevens and O’Connor, JJ.,
concurring); id. at 558 (Brennan and Marshall, JJ., concurring in the judgment);
Phillips, 455 U.S. at 222 (O’Connor, J., concurring).
Reay’s ineffective assistance of counsel, evidentiary, and prosecutorial
misconduct claims to do not rise to the level of constitutional violations. Reay has

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not provided grounds for federal habeas relief by claiming actual innocence based
on newly-discovered evidence, see Herrera v. Collins, 506 U.S. 390, 400 (1993),
or that the state court improperly denied his motion for state habeas counsel, see
Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Because none of Reay’s claims
merit habeas relief, a fortiori, the state court’s rejection of each of these claims was
neither contrary to nor an unreasonable application of clearly established Supreme
Court precedent.
AFFIRMED.

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