                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 04 2014

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



                           FOR THE NINTH CIRCUIT


DENNIS JAMES VICTORIAN,                          No. 11-56929

              Petitioner - Appellant,            D.C. No. 2:07-cv-05514-JVS-
                                                 FMO
  v.

VIMAL SINGH, Warden,                             MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    James V. Selna, District Judge, Presiding

                           Submitted August 28, 2014**
                              Pasadena, California

Before: O’SCANNLAIN, RAWLINSON, and BYBEE, Circuit Judges.

       Appellant Dennis James Victorian (Victorian) was convicted of first degree

burglary, second degree robbery, and assault with a deadly weapon by a Los

Angeles County Superior Court jury. Victorian appeals the district court’s denial


        *
             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).
of his Petition for a Writ of Habeas Corpus. Victorian asserts that his Sixth

Amendment rights were violated when the trial court excused a holdout juror and

refused to declare a mistrial.

      The state court decision denying relief was not contrary to or an

unreasonable application of Supreme Court precedent. Nor was it an unreasonable

determination of facts, as the record demonstrates that the holdout juror declined to

continue deliberating. Victorian has cited no United States Supreme Court case

holding that dismissal of a juror, holdout or otherwise, is unconstitutional. See

White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (clarifying that law is not clearly

established if it must be extended to the facts of the case under consideration).

Additionally, the trial court has broad discretion in deciding whether to grant a

mistrial when the jury is deadlocked. See Illinois v. Somerville, 410 U.S. 458, 462

(1973). The trial court may also employ other measures before declaring a

mistrial, including interviewing jurors at length, asking counsel for suggestions,

and allowing more time for deliberations. See Renico v. Lett, 559 U.S. 766, 779

(2010). In Victorian’s case, the trial court utilized these other measures, and

concluded that a mistrial was not warranted. See id.

      Victorian also asserts that the jury instructions given to the holdout juror and

to the jury collectively were coercive. However, these instructions were similar to


                                          2
Allen1 charges, which have been routinely upheld by the Supreme Court. See

Lowenfield v. Phelps, 484 U.S. 231, 237 (1988); see also Early v. Packer, 537 U.S.

3, 9 (2002).

      AFFIRMED.




      1
        Allen v. United States, 164 U.S. 492, 501 (1896) (approving a jury charge
that urged holdout jurors to reconsider the reasonableness of their positions).

                                        3
