James Mikell v. E. McDaniel , 528 F. App'x 713 ( 2013 )

FILED
NOT FOR PUBLICATION JUN 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. 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
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
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’
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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.
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