Daniel Gonzalez v. Clark Ducart

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 16, 2019
• Docket: 17-55058
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 16 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DANIEL GONZALEZ, No. 17-55058

Petitioner-Appellant, D.C. No. 2:14-cv-01047-SVW-JEM

v. MEMORANDUM * CLARK E. DUCART, Warden,

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Stephen V. Wilson, District Judge, Presiding

Argued and Submitted April 10, 2019 Pasadena, California

Before: GRABER and BYBEE, Circuit Judges, and HARPOOL,** District Judge.

Petitioner Daniel Gonzalez 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. On de novo review, Lujan v. Garcia, 734 F.3d 917, 923 (9th Cir.

2013), we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable M. Douglas Harpool, United States District Judge for the Western District of Missouri, sitting by designation. 1. Petitioner first argues that insufficient evidence supports his two

convictions for attempted murder. We are bound by the California Court of

Appeal’s interpretation of state law, including its interpretation of People v. Smith,

124 P.3d 730, 744–45 (Cal. 2005), which allows a conviction for two counts of

attempted murder when a single bullet is fired. See Bradshaw v. Richey, 546 U.S.

74, 76 (2005) (per curiam) (“[A] state court’s interpretation of state law, including

one announced on direct appeal of the challenged conviction, binds a federal court

sitting in habeas corpus.”). The California Court of Appeal’s factual

determinations—that sufficient evidence supported a finding that Alvarez and

Jimenez both were in the line of fire and an inference that Blanco intended to kill

both men—were not unreasonable. 28 U.S.C. § 2254(d)(2), (e)(1). Thus, the

California Court of Appeal’s conclusion that sufficient evidence supported both

attempted murder convictions is neither contrary to nor an unreasonable

application of Jackson v. Virginia, 443 U.S. 307 (1979). See 28 U.S.C. §

2254(d)(1); Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (“[O]n

habeas review, a federal court may not overturn a state court decision rejecting a

sufficiency of the evidence challenge” unless “the state court decision was

objectively unreasonable.” (internal quotation marks omitted)).

2. Petitioner next contends that Juror No. 3’s statements to other jurors

about her personal experiences with gangs tainted the jury in violation of his Sixth

2 17-55058 Amendment right to an impartial jury and that he was at least entitled to an

evidentiary hearing to question the other jurors about the effect of Juror No. 3’s

misconduct. Although the juror’s failure to reveal her experiences when

questioned in voir dire was misconduct, we conclude that reversal is not warranted.

The trial court removed and replaced the juror, admonished the jury, and required

new deliberations.

Given the trial court’s actions, Petitioner cannot show that the information

imparted by the juror had a “substantial and injurious effect or influence in

determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); Smith v.

Swarthout, 742 F.3d 885, 894 (9th Cir. 2014) (applying Brecht harmless-error

standard to a juror misconduct claim on habeas review). That is particularly so

because the information was cumulative of gang evidence in the case that gang

members kill rival gang members.

Moreover, the California Court of Appeal’s conclusion that the trial court

did not abuse its discretion in declining to conduct an additional hearing to explore

the effect of the juror’s revelations was not contrary to or an unreasonable

application of clearly established federal law as announced by the Supreme Court.

See 28 U.S.C. § 2254(d)(1). Remmer v. United States, 347 U.S. 227 (1954), and

Smith v. Phillips, 455 U.S. 209 (1982), “do not stand for the proposition that any

3 17-55058 time evidence of juror bias comes to light, due process requires the trial court to”

conduct an evidentiary hearing. Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th

Cir. 2003) (emphasis omitted).

3. The California Court of Appeal’s summary denial of Petitioner’s

ineffective-assistance-of-counsel claim was neither contrary to nor an objectively

unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). See

28 U.S.C. § 2254(d)(1). Even assuming that trial counsel’s failure to obtain a

sworn statement was constitutionally deficient performance, there is no reasonable

argument that the failure prejudiced Petitioner. See Strickland, 466 U.S. at 691–93.

4. We do not consider additional arguments raised for the first time in the

reply brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

AFFIRMED.

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