Rivas v. Ryan

Opinion

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 19 2010

MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS

ROY C. RIVAS, Jr., No. 07-56165

Petitioner - Appellant, D.C. No. CV-04-01154-J(JMA)

v. MEMORANDUM * STUART J. RYAN,

Respondent - Appellee.

Appeal from the United States District Court for the Southern District of California Napoleon A. Jones, District Judge, Presiding

Argued and Submitted February 5, 2010 Pasadena, California

Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.

Roy Rivas, a California state prisoner, appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas petition. Rivas argues he was denied a fair trial

because the jury foreman lied during voir dire. He further argues he was deprived

of a peremptory challenge because of the untruthful answers.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. The California Court of Appeal did not unreasonably determine that the jury

foreman, Rudy Medina, answered all questions on voir dire truthfully. See 28

U.S.C. § 2254(e)(1). Medina himself brought the prior relationship with Rivas’

mother to the trial court’s attention; the relationship had been brief and ended over

twenty years before the trial. The court reasonably determined that Medina did not

lie and therefore Rivas had failed to establish implied bias. See Fields v. Brown,

503 F.3d 755, 773 (9th Cir. 2007) (en banc). Rivas had a two day evidentiary

hearing in California Superior Court to establish that Medina was biased and failed

to do so. See id.

Rivas also claims that Medina’s untruthful answers deprived him of a

peremptory challenge. Because a state court’s good-faith deprivation of a

peremptory challenge “is not a matter of federal constitutional concern,” we reject

this claim as well. Rivera v. Illinois, 129 S. Ct. 1446, 1453 (2009).

In reaching this result, we assume proper jurisdiction. Because the petition

lacks merit, we need not address the State’s argument that Evans v. Chavis, 546

U.S. 189 (2006), renders Rivas’ petition untimely.

AFFIRMED.