Amando Zosa Clavano v. P. D. BRAZELTON, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AMANDO ZOSA CLAVANO,
Petitioner - Appellant,
v.
P. D. BRAZELTON, Warden,
Respondent - Appellee.
No. 11-55288
D.C. No. 5:07-cv-00276-SVW-OP
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted November 17, 2014
Pasadena, California
Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.
Petitioner Amando Clavano (“Amando”) appeals the district court’s denial
of his 28 U.S.C. § 2254 habeas corpus petition. Amando was convicted of first
degree murder, along with his brother Oliver, for shooting James Townsend after
Townsend had stolen their car stereo/radio. Amando contends there was
FILED
DEC 02 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

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unconstitutional jury coercion, a Confrontation Clause violation, and sentencing
error.
The jury reported that it had been deadlocked after 13½ hours of
deliberation, in three different sessions over approximately 9 days, with lengthy
read backs and a six-day hiatus. The trial court sent the jury back to deliberate, but
only after inquiring about the numerical division of the jury as to guilt and
innocence.
This court decided Oliver’s appeal in 2012. Clavano v. Hedgepath, 473 F.
App’x 747 (9th Cir. 2012). The panel specifically noted the factors that supported
the state court’s ruling that there was no undue coercion, in concluding there was
no unreasonable application of the Supreme Court’s decision in Lowenfield v.
Phelps, 484 U.S. 231 (1988).
In his appeal, Amando stresses the court’s improper inquiry into the division
of the jury as to guilt and innocence. The Supreme Court strongly disapproved of
such an inquiry, but in the exercise of the Court’s supervisory powers and not as a
matter of constitutional doctrine, in Brasfield v. United States, 272 U.S. 448
(1926). As we observed in Oliver’s case, we would have seen the issue differently
had this situation occurred in a federal trial. See Clavano, 473 F. App’x at 748.
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Given the circumstances that existed in this case, we cannot conclude that the state
court was “unreasonable” in their application of Lowenfield.
The trial court erred in admitting, against Amando, Oliver’s statements to a
police detective. The error was harmless, however, in view of the strength and
amount of evidence implicating Amando. Any sentencing error was also harmless.
AFFIRMED.
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