Jessie Heredia v. LARRY SMALL, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JESSIE HEREDIA,
Petitioner - Appellee,
v.
LARRY SMALL, Warden,
Respondent - Appellant.
No. 12-55796
D.C. No. 2:09-cv-03669-RGK-
DTB
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted July 9, 2013
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
The district court granted Jessie Heredia’s petition for a writ of habeas
corpus after concluding that the trial judge’s decision to discharge a juror (“Juror
No. 9”) under California Penal Code § 1089 violated Heredia’s Sixth Amendment
rights. The district court determined that the California Court of Appeal had not
FILED
JUL 23 2013
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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adjudicated Heredia’s constitutional claims on the merits, and that the
Antiterrorism and Effective Death Penalty Act of 1996’s (“AEDPA”) deferential
standards of review thus did not apply. See 28 U.S.C. § 2254(d).
While respondent Larry Small’s appeal was pending in this court, the
Supreme Court decided Johnson v. Williams, 133 S. Ct. 1088 (2013), which held
that “[w]hen a state court rejects a federal claim without expressly addressing that
claim, a federal habeas court must presume that the federal claim was adjudicated
on the merits—but that presumption can in some limited circumstances be
rebutted.” Id. at 1096. Williams squarely controls our review of this case. As in
Williams, the California Court of Appeal evaluated Heredia’s juror dismissal claim
under state law, but made no express reference to his accompanying federal
constitutional claims. Applying Williams, we must presume—subject to
rebuttal—that the California Court of Appeal adjudicated Heredia’s constitutional
claims on the merits.
Heredia cannot rebut that presumption here. Heredia argues that because the
California Court of Appeal’s opinion in his case does not cite any federal authority,
his case is distinguishable from Williams, where the state court cited a United
States Supreme Court case. But in dismissing Heredia’s appeal, the California
Court of Appeal cited a state case, People v. Barnwell, 162 P.3d 596 (Cal. 2007),
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which concerned a defendant’s Sixth Amendment challenge to the removal of a
juror for failing to deliberate. Id. at 604. The defendant in Barnwell raised only
state and federal constitutional challenges; the case did not discuss the California
statutes that Heredia alleges were the sole focus of the Court of Appeal’s decision
in his case. The Barnwell citation is sufficient indication that the California Court
of Appeal considered Heredia’s federal constitutional claims.
The California Court of Appeal’s decision also cited—albeit on a different
point—People v. Cleveland, 21 P.3d 1225 (Cal. 2001), which the Supreme Court
discussed in Williams. The Supreme Court remarked that “it is difficult to imagine
any panel of appellate judges reading Cleveland and passing on the propriety of
dismissing a holdout juror under § 1089 without realizing that such situations also
bear on the federal constitutional right to a fair trial.” Williams, 133 S. Ct. at
1098–99. The California Court of Appeal’s citation to Cleveland is thus further
evidence that it considered and rejected Heredia’s constitutional claims.
Heredia has failed to rebut the Williams presumption that the state court
rejected his federal constitutional claims on the merits. Our review is therefore
confined by the standards set out in 28 U.S.C. § 2254(d).
Turning to the substance of Heredia’s claims, he first argues that the state
court erred in its factual determination that Juror No. 9 was biased and therefore
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unfit for service under California Penal Code § 1089. We are unable to grant relief
under AEDPA unless we conclude that the state court reached “an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(2).
The state court did not make an unreasonable determination of the facts
supporting its decision to remove Juror No. 9. After receiving three notes signed
by other jurors that alleged conduct and statements by Juror No. 9 exhibiting a
strong bias against all police and prosecutors, the trial court conducted a hearing to
further investigate the matter. The court interviewed six jurors, including Juror
No. 9, before ultimately concluding, based on explicit credibility determinations,
that Juror No. 9 should be removed due to his inability to render a fair and
unbiased verdict. Having reviewed the transcripts of the jurors’ interviews, we
cannot say that the trial court’s conclusion was unreasonable in light of the
evidence before it. This is especially true given that the trial court rested its
conclusion on an assessment of the jurors’ credibility. Thus, Heredia cannot
prevail on his claim for relief under 28 U.S.C. § 2254(d)(2).
Heredia also argues that the trial court’s juror interviews violated his Sixth
Amendment jury trial right. Under AEDPA, we can grant relief only if the state
court’s resolution of Heredia’s Sixth Amendment claim “was contrary to, or
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involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).
No existing Supreme Court precedent establishes that juror interviews conducted
for the purpose of responding to jurors’ complaints of bias during deliberations
violate a defendant’s constitutional rights. Accordingly, we must deny relief.
REVERSED.
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