Jose Ocasio v. James Yates

FILED
NOT FOR PUBLICATION JAN 23 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE OCASIO, No. 09-17467
Petitioner - Appellant, D.C. No. 2:06-cv-00011-GEB-
DAD
v.
JAMES A. YATES, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Submitted January 17, 2013**
San Francisco, California
Before: WALLACE, FARRIS, and BYBEE, Circuit Judges.
Ocasio appeals from 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.
*
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 California Court of Appeal’s affirmance of the trial court’s finding that
the jury had reached a verdict was not unreasonable because: (1) the jury had
reported, both orally and in writing, that it had reached a verdict; and (2) the jury
described the ambiguity or contradiction in the verdict forms as a “clerical error.”
See Taylor v. Maddox, 366 F.3d 992, 999 (9th Cir. 2004). It follows that the trial
judge did not violate any prohibition against polling the jury before a verdict has
been reached. See United States v. McCaleb, 552 F.3d 1053, 1057-58 (9th Cir.
2009), citing Brasfield v. United States, 272 U.S. 448, 449-50 (1926).
Nor has Ocasio shown that the California Court of Appeal’s decision was
contrary to or an unreasonable application of the general rule, applied in
Lowenfield v. Phelps, 484 U.S. 231, 237, 241 (1988), that coerciveness is
determined by considering the totality of the circumstances. Ocasio has not shown
that the state court failed to consider the relevant circumstances, especially in light
of the significant leeway we give to state courts applying such general principles.
See Harrington v. Richter, 131 S. Ct. 770, 786 (2011).
AFFIRMED.
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