James Mikell v. E. McDaniel

Opinion

FILED +Corrected July 8, 2013 JUN 17 2013

MOLLY C. DWYER, CLERK NOT FOR PUBLICATION U.S. COURT OF APPEALS

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES MIKELL, No. 11-15747

Petitioner - Appellant, D.C. No. 3:07-cv-00577-RCJ- RAM v.

BRIAN E. WILLIAMS, SR., MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the District of Nevada Robert Clive Jones, Chief District Judge, Presiding

+Argued and Submitted June 10, 2013 San Francisco, California

Before: TASHIMA and BYBEE, Circuit Judges, and STAFFORD**, Senior District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

** The Honorable William H. Stafford, Jr., Senior District Judge for the U.S. District Court for the Northern District of Florida, sitting by designation. James Mikell appeals the district court’s denial of his petition for a writ of

habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and

we affirm.

Mikell was tried jointly with two co-defendants. During the trial, the two

co-defendants entered into plea agreements with the State. The trial judge advised

the jury that the case had been “resolved” against the two co-defendants, and that

the trial would be proceeding only for Mikell. The judge did not issue a cautionary

instruction advising the jury that the resolution of the case as to Mikell’s co-

defendants should not impact their deliberations with regard to Mikell’s guilt. The

jury found Mikell guilty on all counts.

Mikell claims that he is entitled to habeas relief because the state court

unreasonably applied “clearly established Federal law” in holding that the trial

judge’s handling of his co-defendants’ changes of plea did not violate Mikell’s

constitutional rights. See 28 U.S.C. § 2254(d)(1). The State not only disagrees

with Mikell on the merits, but also contends that Mikell failed to exhaust his claim

in state court.

Even assuming that Mikell exhausted his claim in state court, his claim

fails on the merits. There is no Supreme Court case that clearly establishes that a

trial judge must issue a cautionary instruction or otherwise handle co-defendants’

2 mid-trial changes of plea differently from how the trial judge handled the situation

here. The circuit precedents cited by Mikell are not “clearly established Federal

law” under 28 U.S.C. § 2254(d)(1), see Marshall v. Rodgers, 133 S. Ct. 1446,

1450–51 (2013); Ortiz-Sandoval v. Clarke, 323 F.3d 1165, 1172 (9th Cir. 2003),

and the only Supreme Court cases cited by Mikell are insufficiently on-point for us

to say that the trial court was objectively unreasonable in not applying those cases

to find a constitutional violation, see Harrington v. Richter, 131 S. Ct. 770, 785–86

(2011). Mikell has thus failed to show that the state court unreasonably applied

“clearly established Federal law,” so we affirm the district court’s denial of his

habeas petition.

AFFIRMED.