Jose Leon v. Matthew Cate

FILED
NOT FOR PUBLICATION
SEP 22 2015
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS LEON, No. 13-55705
Petitioner - Appellant, D.C. No. 3:09-cv-02219-LAB-
WMC
v.
MATTHEW CATE, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Argued and Submitted September 1, 2015
Pasadena, California
Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.
Jose Leon appeals from the district court’s judgment denying his 28 U.S.C.
§ 2254 habeas corpus petition. Reviewing the district court’s denial of the petition
de novo, Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Page 2 of 3
1. Leon contends that his Fourteenth Amendment due process rights were
violated because the state trial court failed to follow California law in accepting the
jury’s verdict and denying his motion for new trial. See Hicks v. Oklahoma, 447
U.S. 343, 346 (1980). To the extent Leon argues that the trial court accepted a
less-than-unanimous verdict against him on the gang enhancement, contrary to
California law, he is mistaken. The jury returned a verdict, the clerk read it in open
court, the jury collectively affirmed it without dissent, and it was recorded. Under
California law, the validity of the verdict was not subject to attack at that point
unless Leon established that the jury committed prior misconduct in reaching the
verdict. See Cal. Penal Code § 1181; People v. Bento, 76 Cal. Rptr. 2d 412,
418–20 (Ct. App. 1998); People v. Peavey, 178 Cal. Rptr. 520, 522–23 (Ct. App.
1981).
2. Leon contends that he established jury misconduct because the jury failed
to deliberate on the gang enhancement. The state trial court found, however, that
there was no “reason in law or fact” for it to grant Leon’s motion for new trial on
the basis of jury misconduct. That determination was not unreasonable in light of
the record before the state court. See 28 U.S.C. § 2254(d)(2). Although Juror No.
12 stated in open court that the jury had not deliberated on the gang enhancement
against Leon, his or her statements were unsworn, somewhat equivocal, and
Page 3 of 3
inconsistent with more extensive evidence that the jury had deliberated and agreed
on the gang enhancement. That evidence included (1) the jury’s collective
affirmation of the verdict, including the gang enhancement, before it was recorded;
(2) all eleven remaining jurors’—including Juror No. 12’s—individual affirmation
of the verdict, including the gang enhancement, in the first round of polling after
the verdict was recorded; and (3) the ten other remaining jurors’ continued
individual affirmation of the verdict in the second round of polling,
notwithstanding Juror No. 12’s statements. The state courts reasonably concluded
from this record that the jury had deliberated and reached a unanimous verdict on
the gang enhancement. Because Leon failed to establish that the jury had engaged
in misconduct, the denial of his motion for a new trial did not violate his right to
due process.
3. Leon’s motion to expand the certificate of appealability is denied. See
9th Cir. R. 22–1(e); Hiivala v. Wood, 195 F.3d 1098, 1104–05 (9th Cir. 1999) (per
curiam).
AFFIRMED.
FILED
Leon v. Cate, No. 13-55705
SEP 22 2015
Rawlinson, Circuit Judge, concurring in the judgment.
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
I concur in the ruling affirming the denial of habeas relief. I write separately
because I do not rely on California law to support affirmance of the district court’s
decision.
On habeas review, compliance with state law is not determinative of the
outcome. Indeed, if the state court failed to comply with California law, such
failure would not justify habeas relief. See Loftis v. Almager, 704 F.3d 645, 647
(9th Cir. 2012) (citation omitted). (“It is axiomatic that habeas relief lies only for
violations of the Constitution, laws, or treaties of the United States; errors of state
law will not suffice. . . .”) (citation omitted); see also Holley v. Yarborough, 568
F.3d 1091, 1101 (9th Cir. 2009) (The issue for us, always, is whether the state
proceedings satisfied due process; the presence or absence of a state law violation
is largely beside the point. . . .) (citation omitted).
In assessing a due process claim under the Antiterrorism and Effective Death
Penalty Act of 1996, we evaluate whether the challenged state court decision was
so fundamentally flawed that the petitioner was deprived of a fair trial under
clearly established federal law. See Holley, 568 F.3d 1091 at 1101 (explaining that
habeas relief is warranted when constitutional errors have rendered a trial
1
fundamentally unfair under “clearly established Federal law . . .”) (quoting 28
U.S.C. § 2254(d).
Petitioner’s due process claim was predicated on his assertion that the jury
failed to deliberate regarding the gang enhancement. However, as noted by the
majority, after questioning members of the jury, the trial court determined that the
jury did deliberate regarding the gang enhancement. This finding was not an
unreasonable determination of fact, no due process violation/fundamental
unfairness occurred, and habeas relief is unavailable on these facts. See 28 U.S.C.
§ 2254(d)(2) (precluding habeas relief absent “an unreasonable determination of
the facts” by a state court); see also Holley, 568 F.3d at 1101 (precluding habeas
relief absent fundamental unfairness resulting in a lack of due process). I would
deny habeas relief on this basis.
2