                                                                                       FILED
                               NOT FOR PUBLICATION                                     MAY 22 2015

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



                                FOR THE NINTH CIRCUIT


 DERRYEL LEE,                                         No. 14-35005

                Petitioner - Appellant,               D.C. No. 6:11-cv-01356-SI

   v.
                                                      MEMORANDUM*
 BRIAN BELLEQUE, Warden,

                Respondent - Appellee.


                       Appeal from the United States District Court
                                for the District of Oregon
                       Michael H. Simon, District Judge, Presiding

                           Argued and Submitted May 6, 2015
                                   Portland, Oregon

Before: W. FLETCHER and HURWITZ, Circuit Judges, and CURIEL,** District
Judge.

        Petitioner Derryel Lee appeals from the district court’s denial of his petition



         *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
         **
              The Honorable Gonzalo P. Curiel, District Judge for the U.S. District Court for
the Southern District of California, sitting by designation.



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for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He alleges constitutional

violations arising from jury misconduct during deliberations. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253, and we affirm.

      We review a district court’s denial of a federal habeas petition de novo.

Clabourne v. Ryan, 745 F.3d 362, 370 (9th Cir. 2014). A district court’s factual

findings and credibility determinations are reviewed for clear error. Jones v.

Taylor, 763 F.3d 1242, 1245 (9th Cir. 2014).

      Federal courts “will not review a question of federal law decided by a state

court if the decision of that court rests on a state law ground that is independent of

the federal question and adequate to support the judgment.” Coleman v.

Thompson, 501 U.S. 722, 729 (1991). A state procedural rule is “independent” if it

is not “interwoven with federal law.” La Crosse v. Kernan, 244 F.3d 702, 704 (9th

Cir. 2001). A state rule is “adequate” if it is “clear, consistently applied, and

well-established” at the time of the default. Calderon v. U.S. District Court, 96

F.3d 1126, 1129 (9th Cir. 1996) (citation omitted).

      The state post-conviction relief (“PCR”) trial court barred Lee’s jury

misconduct claim based on Palmer v. State, 867 P.2d 1368 (Or. 1994), which

announced a state procedural rule that prohibits post-conviction relief on an issue

that could have been raised in the trial court but was not. Id. at 1369-70. The


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parties do not dispute that Palmer is independent. Palmer is also adequate because

it is firmly established and regularly followed. See Lerma v. Palmateer, 118 F.

App’x 174, 176 (9th Cir. 2004). Consequently, Lee’s claim of jury misconduct is

procedurally defaulted.

      A state court procedural default may be excused only if a habeas petitioner

can demonstrate cause for the default and resulting prejudice. Coleman, 501 U.S.

at 750. To establish cause, a petitioner must show that “some objective factor

external to the defense impeded . . . efforts to comply with the State’s procedural

rule.” Id. at 753 (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). To

establish prejudice, the petitioner must show “not merely that the errors at . . . trial

created a possibility of prejudice, but that they worked to his actual and substantial

disadvantage, infecting his entire trial with error of constitutional dimensions.”

Murray, 477 U.S. at 494 (quoting United States v. Frady, 456 U.S. 152, 170 (1982)

(internal quotation marks omitted)).

      Lee argues that the state trial court’s failure to rule on his motion for a new

trial prevented his compliance with the state’s procedural rule and constitutes cause

excusing his procedural default. We disagree. Under Oregon law, a motion for

new trial is “deemed denied” if a state trial court does not rule on it within fifty-

five days from the date of judgment. See Or. R. Civ. P. 64F(1). Moreover, Lee


                                            3
failed to properly allege and prove one of the few narrowly drawn exceptions to

Palmer. See 867 P.2d at 1371. The state PCR trial court held a hearing on Lee’s

fourth amended PCR petition and was presented with argument and evidence

concerning when Lee learned about the jury misconduct. The PCR trial court

heard testimony from Lee and his sister, Doris Lee, and reviewed exhibits offered

by both parties, including the affidavits of Doris Lee and her friend that explained

how they learned about the jury misconduct. The state PCR trial court’s summary

denial of Lee’s claim citing Palmer was an implicit rejection of Lee’s credibility

on this issue, and is presumed correct under 28 U.S.C. § 2254(e)(1). See Tinsley v.

Borg, 895 F.2d 520, 525 (9th Cir. 1990) (implicit factual findings are entitled to a

presumption of correctness in appropriate circumstances); see also Taylor v. Horn,

504 F.3d 416, 433 (3d Cir. 2007) (“Implicit factual findings are presumed correct

under § 2254(e)(1) to the same extent as express factual findings.”). Since Lee has

failed to demonstrate cause, we need not consider the prejudice factor. See Smith

v. Murray, 477 U.S. 527, 533 (1986).

      Next, Lee contends the district court’s finding that Lee lacked credibility

was clearly erroneous and the district court should have held an evidentiary hearing

on credibility before making any factual findings. We disagree. The district court

reviewed the PCR trial court proceedings as well as the documents that were before


                                          4
the PCR trial court. The PCR trial court implicitly concluded that Lee lacked

credibility on when he first learned of the alleged jury misconduct by denying his

PCR petition based on Palmer. The district court’s credibility determination is

thus best understood as a determination that the PCR trial court’s implicit

credibility determination was not an unreasonable finding of fact. See 28 U.S.C. §

2254(e)(1). Therefore, the district court did not err in declining to hold an

evidentiary hearing to take new evidence on the question of whether Lee was

telling the truth about when he learned of the alleged jury misconduct.

      AFFIRMED.




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