                                                                                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                            NOT FOR PUBLICATION                                  JAN 23 2013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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