                                                                           FILED
                           NOT FOR PUBLICATION
                                                                             JUL 28 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ISABEL IRENE VARELA,                             No. 14-15885

              Petitioner - Appellant,
                                                 D.C. No. 2:13-cv-00013-JKS
 v.

DEBORAH K. JOHNSON, Warden,                      MEMORANDUM*

              Respondent - Appellee.


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

                        Argued and Submitted July 21, 2016
                            San Francisco, California

Before: GRABER and TALLMAN, Circuit Judges, and RAKOFF,** Senior
District Judge.

      Petitioner Isabel Varela appeals the district court’s decision to deny her

habeas petition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      We review the district court’s decision de novo. See Lopez v. Thompson, 202

F.3d 1110, 1116 (9th Cir. 2000) (en banc). We review the district court’s factual

findings for clear error. See id.

      “Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), federal habeas relief is only available if the state court decision (1) was

contrary to, or involved an unreasonable application of, clearly established federal

law, as determined by the United States Supreme Court; or (2) was based on an

unreasonable determination of the facts in light of the evidence presented in the

state court proceeding.” Garcia v. Long, 808 F.3d 771, 776 (9th Cir. 2015) (citing

28 U.S.C. § 2254(d)(1), (2)). The state court’s ruling must be “so lacking in

justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011). In applying these standards, we review the last reasoned

state court decision, which in this case was rendered by the California Court of

Appeal. See Mays v. Clark, 807 F.3d 968, 976 (9th Cir. 2015).

      Petitioner Varela’s appeal of the denial of her habeas petition, as here

relevant, rests on a claim of juror bias. Specifically, Varela claims that the state

trial judge permitted Juror No. 8 to remain on the jury that convicted her, even

though a colloquy among the trial judge, defense counsel, and Juror No. 8 revealed


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that Juror No. 8 could not act as an unbiased juror. Varela contends that the

presence of Juror No. 8 on the jury violated her right to an impartial jury under the

Sixth Amendment, as applied to the states by the Fourteenth Amendment.

However, the California Court of Appeal, on direct review, found that the trial

court’s decision not to discharge Juror No. 8 was supported by the record.

      Varela has not demonstrated an entitlement to federal habeas relief.

Assuming that federal law on Sixth Amendment claims of juror bias is clearly

established, nevertheless the California Court of Appeal’s decision did not

unreasonably apply this law, nor was its decision based on an unreasonable

determination of the facts. See 28 U.S.C. § 2254(d). In particular, the state trial

judge acted within his discretion in evaluating the statements made by Juror No. 8

and coming to the conclusion that Juror No. 8 was fit to serve. As an initial matter,

the statements made by Juror No. 8 were at worst ambiguous; while Juror No. 8

stated that he might have “a little bit” of doubt as to whether he could serve as a

fair juror, he also said he would “try [his] best” to give the defendants a fair trial.

Furthermore, these statements must be evaluated against the background of the

juror’s overall demeanor and presentation to the trial court. We are particularly

mindful that “determinations of demeanor and credibility” as to a juror’s fitness to




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serve “are peculiarly within a trial judge’s province.” Wainwright v. Witt, 469 U.S.

412, 428 (1985).

      AFFIRMED.




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