Donald R. McNeely v. MATTHEW L. CATE, Secretary CDCR

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD R. MCNEELY,
Petitioner - Appellant,
v.
MATTHEW L. CATE, Secretary CDCR,
Respondent - Appellee.
No. 11-56393
D.C. No. 3:08-cv-02284-BTM-
CAB
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Barry T. Moskowitz, District Judge, Presiding
Argued and Submitted October 7, 2013
Pasadena, California
Before: FERNANDEZ, PAEZ, and HURWITZ, Circuit Judges.
California state prisoner Donald R. McNeely appeals the district court’s denial
of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and we affirm.
The blog post by the jury foreman before the conclusion of deliberations was
improper. The state court did not unreasonably conclude, however, that the juror was
FILED
OCT 17 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.

-- 1 of 2 --

not biased, Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998), and that no
extraneous prejudicial information was thereby brought to the jury’s attention. The
state court found that the juror’s statements during voir dire were incomplete but
technically correct and also were not indicative of bias; this was not an unreasonable
determination of the facts in light of the evidence presented in the evidentiary hearings
in state court. 28 U.S.C. § 2254(d)(2). The district court properly held that McNeely
is not entitled to relief on this claim.
McNeely’s request to represent himself was made just before the jury was
seated; the state court’s determination that the request was untimely was not an
unreasonable application of settled federal law. Id. § 2254(d)(1).
The district court also did not err in rejecting McNeely’s claim that he was
improperly removed from the courtroom. McNeely disrupted the proceedings several
times; his ejection was warranted. Illinois v. Allen, 397 U.S. 337, 343 (1970).
The district court also properly rejected McNeely’s sentencing challenges.
Because McNeely admitted to his prior convictions, the enhanced sentences were
proper under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and Cunningham v.
California, 549 U.S. 270, 288 (2007), and the consecutive sentences were proper
under Oregon v. Ice, 555 U.S. 160, 169-70 (2009).
AFFIRMED.
2

-- 2 of 2 --