                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            OCT 30 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


MARK ZANA,                                       No.   15-17101

              Petitioner-Appellant,              D.C. No.
                                                 2:12-cv-01013-JCM-VCF
 v.

DWIGHT NEVEN, Warden and ADAM                    MEMORANDUM*
PAUL LAXALT,

              Respondents-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                      Argued and Submitted August 15, 2017
                            San Francisco, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and EZRA,** District
Judge.

      Nevada state prisoner Mark Zana (Zana) appeals the district court’s denial of




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
his petition for a writ of habeas corpus. Zana contends that he is entitled to a new

trial as a result of jury misconduct in his criminal trial. Specifically, Zana

maintains that the independent research conducted by Juror Thurman and

subsequent discussions of that research with other jurors constituted prejudicial

juror misconduct. Zana additionally requests that this court certify his claims

related to the district court’s denial of his motion to suppress and decision not to

conduct a Franks1 hearing. We affirm the decision of the district court and decline

to certify Zana’s uncertified claims.

       As the Nevada Supreme Court concluded, Juror Thurman’s failed internet

research was juror misconduct under clearly established Supreme Court precedent.

See Turner v. Louisiana, 379 U.S. 466, 472-73 (1965) (prohibiting the introduction

of extraneous information to jurors). Because Juror Thurman’s internet research

was ultimately fruitless, the Nevada Supreme Court’s conclusion that no harm

resulted from this misconduct was not contrary to, or an unreasonable application

of, clearly established Supreme Court authority. See Davis v. Ayala, 135 S. Ct.

2187, 2197, reh’g denied, 136 S. Ct. 14 (2015) (providing that a habeas petitioner

is entitled to relief for assertions of trial error only if “the error was not harmless”).




       1
           Franks v. Delaware, 438 U.S. 154 (1978).
                                             2
      The additional juror conduct noted by Zana as potentially prejudicial did not

rise to the level of misconduct under Turner.2 Rather, those acts were common,

everyday experiences, that may be considered in the course of jury deliberations.

See McCleskey v. Kemp, 481 U.S. 279, 311 (1987) (recognizing that jurors rely on

their life experiences).

      We decline to certify Zana’s claims regarding his motion to suppress and his

request for a Franks hearing because Zana has not made a “substantial showing of

the denial of a constitutional right.” Robertson v. Pichon, 849 F.3d 1173, 1187 (9th

Cir. 2017) (citation omitted).

      AFFIRMED.




      2
         During an evidentiary hearing, juror testimony revealed that at least one
juror observed children at church in order to determine the ages of children in
general. Another juror revealed that a fellow juror observed girls in casinos to
gauge if he could discern their ages. Juror Thurman also conducted an
“experiment” placing his cell phone and keys in his pants pocket, and attempting to
stick his hands into his pocket while seated. The experiment was apparently
intended to test the credibility of witnesses.
                                         3
