Oliver Zosa Clavano v. TONY HEDGEPATH, Warden

* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
OLIVER ZOSA CLAVANO,
Petitioner - Appellant,
v.
TONY HEDGEPATH, Warden,
Respondent - Appellee.
No. 09-56708
D.C. No. 5:07-cv-00275-MMM-
JWJ
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Argued and Submitted May 11, 2012
Pasadena, California
Before: PREGERSON and GRABER, Circuit Judges, and CHEN,** District Judge.
Petitioner Oliver Zosa Clavano appeals from the district court’s denial of his
federal habeas petition, raising a claim that the state trial judge unconstitutionally
FILED
MAY 29 2012
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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coerced the jury’s verdict. Reviewing de novo, Lambert v. Blodgett, 393 F.3d 943,
964 (9th Cir. 2004), we affirm.
Under the deferential standard of review, 28 U.S.C. § 2254(d)(1), Harrington
v. Richter, 131 S. Ct. 770, 785 (2011), the district court properly denied habeas
relief. The state appellate court correctly identified and applied the constitutional
rule announced in Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). Because the
rule is a general one, Weaver v. Thompson, 197 F.3d 359, 366 (9th Cir. 1999), the
state court had "more leeway" in its application, Yarborough v. Alvarado, 541 U.S.
652, 664 (2004). Whatever we might have decided had the case arisen on direct
review, we cannot conclude that the state court’s application of Lowenfield here
was "unreasonable." 28 U.S.C. § 2254(d)(1).
When the trial judge inquired as to whether more time would assist the jury,
at least two jurors gave equivocal answers. Additionally, as the trial court noted
during its charge, the trial and deliberations had been "chopped up," so it was
unclear whether the jury had been given a full opportunity to resolve the case. The
trial court never instructed the jurors to give up their firmly held views; the court
simply asked the jury to "try" for a "little while" longer to reach a verdict.
Moreover, defense counsel did not object to the trial court’s comments and
instructions to the jury. See Lowenfield, 484 U.S. at 240 (noting that the failure of

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defense counsel to object "indicates that the potential for coercion argued now was
not apparent to one on the spot"). Finally, as the state appellate court noted, the
tentative vote was 8 to 4. Although other factors supported the opposite
conclusion, the factors described above supported the state court’s determination
that the trial judge’s charge did not violate the Constitution. See Weaver, 197 F.3d
at 366 (listing the relevant factors).
AFFIRMED.

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