                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                               FILED
                            FOR THE NINTH CIRCUIT                                 MAY 23 2011

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

MICHAEL TODD PANELLA,                            No. 09-17302

              Petitioner - Appellant,            D.C. No. 1:06-cv-00795-CRB

  v.
                                                 MEMORANDUM*
JOHN MARSHALL, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Charles R. Breyer, District Judge, Presiding

                        Argued and Submitted May 10, 2011
                             San Francisco, California

Before: GOULD and M. SMITH, Circuit Judges, and MARBLEY, District Judge.**



       California state prisoner Michael Panella appeals the district court’s

dismissal of his 28 U.S.C. § 2254 habeas petition. We have jurisdiction under 28


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
U.S.C. § 2253. Because the parties are familiar with the factual and procedural

history of this case, we do not recount additional facts except as necessary to

explain the decision. We affirm.

      Panella first claims that he was denied due process on the basis of

prosecutorial misconduct. At trial, two government witnesses who had charges

pending on other matters at the time they gave their testimony denied being

motivated to testify by an expectation of leniency. Panella claims that the

prosecution failed to meet two constitutional obligations with respect to this

testimony: (1) the duty under Brady v. Maryland, 373 U.S. 83 (1963), to disclose

the existence of a secret deal for leniency between the prosecution and the

witnesses; and (2) the duty under Napue v. Illinois, 360 U.S. 264 (1959), to correct

the false testimony that the witnesses were not motivated by the expectation of

leniency. The district court did not certify Panella’s Napue claim for our review,

but, because the parties both briefed the claim, we now expand the certificate of

appealability. 9th Cir. R. 22-1(e).

      The district court correctly concluded that Panella has not shown that the

state court’s denial of Panella’s habeas petition based on prosecutorial misconduct

was “contrary to, or involved an unreasonable application of” Supreme Court law

or that it “was based on an unreasonable determination of the facts.” 28 U.S.C.


                                          2
§ 2254(d). The state court concluded that Panella’s Brady claim failed because

Panella had not produced any evidence that the prosecution promised or suggested

leniency in exchange for the witnesses’ testimony. Likewise, the state court

determined that Panella’s Napue claim failed because he had not produced any

evidence that the prosecution knew at the time of trial that the witnesses lied when

they testified that they did not expect leniency. See United States v. Zuno-Arce, 339

F.3d 886, 889 (9th Cir. 2003) (stating that Napue claim includes the following

elements: “(1) the testimony (or evidence) was actually false, (2) the prosecution

knew or should have known that the testimony was actually false, and (3) that the

false testimony was material.”). As the district court found, Panella has not offered

any evidence or Supreme Court law demonstrating that the state court’s “ruling . . .

was 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, 131 S. Ct. 770, 786–787 (2011).

      Nor can we conclude that the district court abused its discretion in denying

Panella an evidentiary hearing on his prosecutorial misconduct claim. The state

court held, and the district court agreed, that Panella’s prosecutorial misconduct

claims would not, if proven, have been material to the outcome of his trial given

the quantity of independent evidence demonstrating Panella’s guilt. See United


                                          3
States v. Bagley, 473 U.S. 667, 678 (1985) (Brady materiality); United States v.

Agurs, 427 U.S. 97, 103 (1976) (Napue materiality). Since a habeas petitioner is

not entitled to an evidentiary hearing unless he has “‘alleged facts that, if proven,

would entitle him to habeas relief,’” Earp v. Ornoski, 431 F.3d 1158, 1167 (9th

Cir. 2005) (quoting Williams v. Woodford, 384 F.3d 567, 586 (9th Cir. 2004)), the

district court did not abuse its discretion by concluding that Panella’s inability to

demonstrate materiality rendered an evidentiary hearing unnecessary. See Cullen v.

Pinholster, 131 S. Ct. 1388, 1401 (2011) (“Although state prisoners may

sometimes submit new evidence in federal court, AEDPA’s statutory scheme is

designed to strongly discourage them from doing so.”).

      Second, Panella claims juror misconduct, committed when the foreperson

coerced another juror into changing her verdict, warrants reversal of his conviction.

The state court found as a factual matter that the foreperson did not physically

coerce the juror to change her verdict. Without the element of physical coercion,

the state court determined that the allegations in the affidavit described no more

than permissible “heated discussions that naturally occur at times during jury

deliberations.” The record supports the state court’s factual finding, see 28 U.S.C.

§ 2254(d)(2), and Panella has not pointed to any clearly established Supreme Court

law holding that a jury verdict influenced by harassment but not coercion violates


                                           4
due process, see 28 U.S.C. § 2254(d)(1). We therefore agree with the district court

that Panella’s claim for habeas relief must be denied.

      Finally, the district court did not abuse its discretion in declining to hold an

evidentiary hearing on Panella’s juror misconduct claim because the state court

assumed the truth of Panella’s factual allegations before correctly ruling that no

constitutional error had occurred. See Earp, 431 F.3d at 1167 (holding that

petitioner must establish “colorable claim for relief” before being entitled to

evidentiary hearing). Cf. Pinholster, 131 S.Ct at 1412 (Breyer, J., concurring in

part) (noting that where the state court assumed a habeas petitioner’s facts but

unreasonably found those facts did not violate federal law, a hearing in federal

court might be required).

      AFFIRMED.




                                           5
