Truax v. Giurbino

92 F. App'x 570

Opinion

MEMORANDUM

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Petitioner Donald Truax, a state prisoner, claims that he was denied a fair trial because the state trial judge commented critically, in front of the jury, about Truax’s defense and the testimony of Truax’s only defense witness. The California Court of Appeal concluded that “the trial court erred in carrying out [certain] discussions in front of the jury.” We agree.

However, an appropriate jury instruction may obviate the risk of prejudice. See Maiden v. Bunnell, 35 F.3d 477, 482-83 (9th Cir.1994). Because the trial judge instructed the jury to disregard any court comment that seemed to suggest “what [the jury] should find to be the facts, or that [the court] believe[d] or disbelievefd] any witness,” the California Court of Appeal found the trial court’s comments to be nonprejudicial. That finding was not contrary to, and did not involve an unreasonable application of, clearly established federal law; nor was the finding based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d). Accordingly, we AFFIRM.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.