Michael G. Arnold v. Anthony Kane

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).
The Honorable Robert S. Lasnik, District Judge for the U.S. District***
Court for Western Washington, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL G. ARNOLD,
Petitioner - Appellant,
v.
ANTHONY KANE,
Respondent - Appellee.
No. 10-16956
D.C. No. 2:06-cv-01539-AWT
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
A. Wallace TASHIMA, Senior Circuit Judge, Presiding
Submitted December 6, 2011**
San Francisco, California
Before: O’SCANNLAIN and BERZON, Circuit Judges, and LASNIK, District
Judge.***
FILED
DEC 21 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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Petitioner-Appellant Michael G. Arnold appeals the denial of his federal
habeas petition. He argues that adverse pretrial publicity deprived him of a fair
trial and that the state trial court should therefore have granted a change of venue.
We affirm.
Because Arnold’s habeas petition was filed after April 24, 1996, the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies. Under
AEDPA, Arnold must demonstrate that the state court’s merits decision “was
contrary to, or involved an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States” or “was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d).
To establish a constitutional violation on grounds of adverse pretrial
publicity, a criminal defendant must demonstrate either actual or presumed
prejudice. Randolph v. California, 380 F.3d 1133, 1142 (9th Cir. 2004). Arnold
fails to establish any error, let alone one rising to the level necessary for relief
under § 2254(d). The state court reasonably concluded that the publicity
surrounding his trial was not extreme enough to compel a finding of presumptive
prejudice. See Murphy v. Florida, 421 U.S. 794, 796-99 (1975). Nor does the for-

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cause dismissal of two prospective jurors establish the existence of actual
prejudice. See id. at 803.
AFFIRMED.

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