                                                                              FILED
                            NOT FOR PUBLICATION                               MAR 24 2010

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


TIFFANY MARIE IMEL,                              No. 08-15502

              Petitioner - Appellant,            D.C. No. 4:05-cv-00150-JMR

  v.
                                                 MEMORANDUM *
DORA B. SCHRIRO,

              Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Arizona
                    John M. Roll, Chief District Judge, Presiding

                       Argued and Submitted March 8, 2010
                            San Francisco, California

Before: B. FLETCHER, CLIFTON, and BEA, Circuit Judges.

       Tiffany Marie Imel appeals the district court’s denial of her federal habeas

petition. Because we agree that the state court decision rejecting her claims was

not unreasonable, we affirm. See 28 U.S.C. § 2254(d).




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Imel argues that her right to a fair and impartial jury was denied by

excessive pretrial publicity occurring during and shortly after her first trial, which

ended in a deadlocked jury. Imel, noting that her second trial followed closely on

the heels of her first trial, points primarily to media reports describing a co-

conspirator as a “brain damaged hitman”; characterizations of Imel as a drug

addict; reports of a financial motive for the murder; and reports on the prior jury

foreman’s opinion that eleven members of the first jury favored conviction. Imel

argues that this coverage was so pervasive and inflammatory that the court must

presume prejudice.

      We disagree. “Prejudice is presumed when the record demonstrates that the

community where the trial was held was saturated with prejudicial and

inflammatory media publicity about the crime.” Harris v. Pulley, 885 F.2d 1354,

1361 (9th Cir. 1988) (noting also that a finding of presumed prejudice is “rare[ ]”

and “reserved for an extreme situation” (internal quotation marks omitted)); see

also Patton v. Yount, 467 U.S. 1025, 1032–33 (1984). The bulk of the information

in the media reports to which Imel objects was factual in nature and introduced at

trial. See Casey v. Moore, 386 F.3d 896, 907 (9th Cir. 2004). A thorough review

of the voir dire also reveals no evidence that the media coverage had inflamed the

passion of the community or made it impossible to seat an impartial panel. Cf.,


                                           2
e.g., Fetterly v. Paskett, 163 F.3d 1144, 1146–47 (9th Cir. 1998). In short, the

publicity in this case does not meet the standard for presumed prejudice; rather, the

facts of this appeal support a finding of no prejudice. See Mu’Min v. Virginia, 500

U.S. 415, 418–21, 427–30 (1991); Patton, 467 U.S. at 1027–28, 1032–35; Murphy

v. Florida, 421 U.S. 794, 796, 802–803 (1975).

      We also reject Imel’s argument that juror misconduct tainted her trial. The

purported misconduct, a comment by an alternate juror that she had overheard her

son say he was going to see a trial where “two meth-heads had whacked some

dude,” was harmless.1 See Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000)

(reviewing whether the misconduct had a substantial and injurious effect on the

verdict). Applying the factors described in Sassounian, see id. at 1109, we

conclude there was no realistic prospect of prejudice. The comment was

ambiguous, as it might have referred not to Imel and her mother but to the two

other co-conspirators who had already confessed their involvement in the crime.

Moreover, even assuming that the jury applied the comment to Imel, the comment,

although pejorative, simply restated information the jurors already knew: the




      1
          We consider this misconduct in the context of Imel’s other allegations that
this alternate juror, and another to whom the comment was addressed, may have
been affected by other comments by a potential juror who was not seated.
                                          3
charges against Imel and her drug use were before the jury. The state court

decision was not unreasonable.

      AFFIRMED.




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