Dennis Victorian v. Vimal Singh ( 2014 )

FILED
NOT FOR PUBLICATION SEP 04 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DENNIS JAMES VICTORIAN, No. 11-56929
Petitioner - Appellant, D.C. No. 2:07-cv-05514-JVS-
FMO
v.
VIMAL SINGH, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted August 28, 2014**
Pasadena, California
Before: O’SCANNLAIN, RAWLINSON, and BYBEE, Circuit Judges.
Appellant Dennis James Victorian (Victorian) was convicted of first degree
burglary, second degree robbery, and assault with a deadly weapon by a Los
Angeles County Superior Court jury. Victorian appeals the district court’s denial
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of his Petition for a Writ of Habeas Corpus. Victorian asserts that his Sixth
Amendment rights were violated when the trial court excused a holdout juror and
refused to declare a mistrial.
The state court decision denying relief was not contrary to or an
unreasonable application of Supreme Court precedent. Nor was it an unreasonable
determination of facts, as the record demonstrates that the holdout juror declined to
continue deliberating. Victorian has cited no United States Supreme Court case
holding that dismissal of a juror, holdout or otherwise, is unconstitutional. See
White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (clarifying that law is not clearly
established if it must be extended to the facts of the case under consideration).
Additionally, the trial court has broad discretion in deciding whether to grant a
mistrial when the jury is deadlocked. See Illinois v. Somerville, 410 U.S. 458, 462
(1973). The trial court may also employ other measures before declaring a
mistrial, including interviewing jurors at length, asking counsel for suggestions,
and allowing more time for deliberations. See Renico v. Lett, 559 U.S. 766, 779
(2010). In Victorian’s case, the trial court utilized these other measures, and
concluded that a mistrial was not warranted. See id.Victorian also asserts that the jury instructions given to the holdout juror and
to the jury collectively were coercive. However, these instructions were similar to
2
Allen1 charges, which have been routinely upheld by the Supreme Court. See
Lowenfield v. Phelps, 484 U.S. 231, 237 (1988); see also Early v. Packer, 537 U.S.
3, 9 (2002).
AFFIRMED.
1
Allen v. United States, 164 U.S. 492, 501 (1896) (approving a jury charge
that urged holdout jurors to reconsider the reasonableness of their positions).
3