Gary Corbray v. Maggie Miller-Stout ( 2012 )

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                                                                           FILED
NOT FOR PUBLICATION                              FEB 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GARY LOUIS CORBRAY,                              No. 09-35834
Petitioner - Appellant,            D.C. No. 2:09-cv-03034-EFS
v.
MEMORANDUM *
MAGGIE MILLER-STOUT,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of Washington
Edward F. Shea, District Judge, Presiding
Argued and Submitted February 10, 2012
Seattle, Washington
Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.
Petitioner-Appellant Gary Louis Corbray (“Corbray”) appeals the district
court’s dismissal of his

28 U.S.C. § 2254

 habeas corpus petition, in which he
challenges his jury conviction for child molestation. He contends that the district
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court erred in concluding that his federal constitutional claims of ineffective
assistance of trial counsel and jury bias were procedurally barred.
Corbray’s claim of ineffective assistance of trial counsel is procedurally
barred by Washington’s inadequate briefing rule. Pursuant to this rule,
Washington state courts require a petitioner to substantiate his factual allegations
in his personal restraint petition by either citing to the record or by providing
admissible evidence outside the record. See In re Rice,

828 P.2d 1086

, 1092–93
(Wash. 1992) (citing Wash. R. App. P. 16.7(a)(2)(i)). This procedural bar is based
on independent and adequate state law. See Parmelee v. Fraker, No. C09-
5273BHS,

2010 WL 546933

, at *8 (W.D. Wash. 2010) (collecting cases from 1994
to 2008) (unpublished); see also State v. Ruiz,

138 Wash. App. 1021

2007 WL 1229392

, at *4 (Wash. App. Div. 3, Apr. 26, 2007) (unpublished); State v.
Crocker,

138 Wash. App. 1008

2007 WL 1129574

, at *4–5 (Wash. App. Div. 2,
Apr. 17, 2007) (unpublished); State v. Gilbert,

126 Wash. App. 1022

2005 WL 583635

, at *2 (Wash. App. Div. 1, Mar. 14, 2005) (unpublished); In re DiBartolo,

115 Wash. App. 1008

2003 WL 116155

, at *1, 12 (Wash. App. Div. 3, Jan. 14,
2003) (unpublished); State v. Otto,

97 Wash. App. 1084

1999 WL 1028782

, at
*2–3 (Wash. App. Div. 3, Nov. 12, 1999) (unpublished). Corbray has not provided
citation to any authority to the contrary. See Bennett v. Mueller,

322 F.3d 573

, 586
2
(9th Cir. 2003) (reasoning that “[o]nce the state has adequately pled the existence
of an independent and adequate state procedural ground” the remaining issues shift
to the petitioner).
Here, the Washington Supreme Court, on collateral attack, expressly relied
on this established procedural bar, ruling that Corbray’s ineffective assistance of
trial counsel claim consisted of “conclusory allegations unsupported by any
citation to the record or to admissible evidence.” The district court thus properly
found that Corbray’s procedural default barred federal habeas review of this claim.
On appeal, we find no reason to lift this procedural bar because Corbray has failed
to show “actual prejudice as a result of the alleged violation of federal law” or a
fundamental miscarriage of justice. See Coleman v. Thompson,

501 U.S. 722

, 750
(1991).
Corbray’s jury bias claim, however, is not procedurally barred from federal
habeas review by Washington’s relitigation rule, see In re Taylor,

717 P.2d 755

,
758 (Wash. 1986). The U.S. Supreme Court has held that state relitigation bars,
while presenting a barrier to further state review, have “nil” effect on the
availability of federal habeas review. See Wellons v. Hall,

130 S. Ct. 727

, 730
(2010); Cone v. Bell,

129 S. Ct. 1769

, 1781 (2009); Ylst v. Nunnemaker,

501 U.S.

                                       3
797, 804 n.3 (1991); see also Pirtle v. Morgan,

313 F.3d 1160

, 1168 (9th Cir.
2002).
Even though Corbray’s jury bias claim is not procedurally barred, it lacks
merit. The Washington Court of Appeals, on direct review, found that the trial
court properly held a fact-finding hearing to determine if the alleged juror
misconduct occurred, and the Court of Appeals concluded that the trial court did
not abuse its discretion in finding it had not. This conclusion is not inconsistent
with U.S. Supreme Court precedent. See Smith v. Phillips,

455 U.S. 209

, 215–18
(1982) (reversal not required where a juror applied for employment in the District
Attorney’s Office during trial and the trial judge held a post-trial hearing to
determine prejudice); Remmer v. United States,

347 U.S. 227

, 228–30 (1954)
(hearing required to determine prejudice where a third party attempted to bribe the
jury foreman); Mattox v. United States,

146 U.S. 140

, 142–43, 153 (1892) (opining
that a new trial was warranted where the jury was exposed to extrinsic record facts
and public opinion). We accordingly conclude that Corbray is not entitled to a new
trial on his impartial jury claim because the state court decision on the merits was
not “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States.” §
2254(d)(1); see also Harrington v. Richter,

131 S. Ct. 770