                                                                            FILED
                           NOT FOR PUBLICATION                               MAR 17 2016

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



                            FOR THE NINTH CIRCUIT


LACY MILLER,                                      No. 13-17588

              Petitioner - Appellant,             D.C. No. 2:12-cv-01351-JKS

 v.
                                                  MEMORANDUM*
PEOPLE OF THE STATE OF
CALIFORNIA; GARY SWARTHOUT,
Warden,

              Respondents - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                James K. Singleton, Senior District Judge, Presiding

                            Submitted March 14, 2016**
                             San Francisco, California

Before: McKEOWN, WARDLAW, and TALLMAN, Circuit Judges.

      Lacy Miller appeals the district court’s denial of his petition for habeas relief

from his conviction for second degree murder and possession of a controlled


        *
             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).
substance. The sole issue certified for appeal is whether Miller was denied his

Sixth Amendment right to an impartial jury because a juror in his trial was dating

Miller’s ex-girlfriend. See Irvin v. Dowd, 366 U.S. 717, 722 (1961) (“[T]he righ to

a jury trial guarantees to the criminally accused a fair trial by a panel of impartial,

‘indifferent’ jurors.”).

       Our review is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214. A finding of actual

bias (or a lack thereof) is a question of fact. Fields v. Brown, 503 F.3d 755, 768

(9th Cir. 2007) (en banc). Under AEDPA, we may grant habeas relief only where

the state court’s determination was “based on an unreasonable determination of the

facts in light of the evidence presented in the State court proceeding.” Taylor v.

Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (citing 28 U.S.C. § 2254(d)(2)).

Specific factual findings by the state court are presumed correct and are rebuttable

only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Murray v.

Shriro, 745 F.3d 984, 999-1001 (9th Cir. 2014). We review the district court’s

application of these standards de novo. Crittenden v. Chappell, 804 F.3d 998, 1006

(9th Cir. 2015).

       The state court’s finding that the juror did not realize that defendant Miller

was the same Miller who had previously dated his girlfriend was not an


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unreasonable factual finding for purposes of AEDPA. There was no direct

evidence that the juror ever made the link between Miller and the girlfriend, and

the state court was not required to draw an inference that the juror must have made

the connection. The state court heard extensive testimony, and its evaluation of

that testimony deserves deference. See McClure v. Thompson, 323 F.3d 1233, 1241

(9th Cir. 2003) (deferring to state court’s decision when it simply asserted that it

accepted the credibility of a witness). That there was a substitution of the judge in

the state court on the final day of hearings does not change the statutory burden to

“rebut[] the presumption of correctness [of factual findings] by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1).

      Even if the juror’s testimony was difficult to believe, the state court did not

solely rely on his testimony to discredit the girlfriend’s testimony or to find that a

link was missing. This is not a case where a juror’s “pattern of lies, inappropriate

behavior, and attempts to cover up his behavior introduced ‘destructive

uncertainties’ into the fact-finding process.” Green v. White, 232 F.3d 671, 676

(9th Cir. 2000) (citation omitted). As the state court noted, there was no evidence

in the record that the juror had acted in a biased manner during the trial, or that he

shared the information about the connection with any other juror.




                                           3
      Even if we were to construe Miller’s claim as an implied bias challenge, see

Fields, 503 F.3d at 770, his claim would be barred under AEDPA because our

circuit cases recognizing an implied bias claim are not “clearly established federal

law.” Hedlund v. Ryan, No. 09-99019, 2016 WL 851821, at *12 (9th Cir. Mar. 4,

2016).

      AFFIRMED.




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