                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            SEP 27 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
RONALD NATHANIEL HURTADO,                        No.   15-15184

              Petitioner-Appellant,              D.C. No. 4:11-cv-00037-PJH

 v.
                                                 MEMORANDUM*
STU SHERMAN, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Phyllis J. Hamilton, Chief Judge, Presiding

                    Argued and Submitted September 12, 2016
                            San Francisco, California

Before: GOULD and BERZON, Circuit Judges, and SESSIONS,** District Judge.

      California state prisoner Ronald Hurtado appeals the district court’s denial

of his 28 U.S.C. § 2254 habeas corpus petition challenging his convictions for

attempted murder, shooting at an occupied motor vehicle, and attempting to


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
              The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
dissuade a witness. At voir dire before Hurtado’s trial, the state court denied

Hurtado’s for-cause challenge of a juror, referred to here as “Juror 10.” The state

appellate court affirmed. In his petition filed before the district court, Hurtado

argued that the state trial court violated his right to an impartial jury. Although the

district court denied Hurtado’s petition, it granted a certificate of appealability on

the juror issue.

       We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review the

district court’s denial of a habeas corpus petition de novo. Yee v. Duncan, 463

F.3d 893, 897 (9th Cir. 2006). To reverse the district court, we must hold that the

state appellate court’s decision was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme

Court,” or “was based on an unreasonable determination of the facts in light of the

evidence presented.” 28 U.S.C. § 2254(d).

       The Sixth Amendment requires a fair trial, including “an impartial trier of

fact—a jury capable and willing to decide the case solely on the evidence before

it.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984)

(internal quotations omitted). Voir dire examination protects this right “by

exposing possible biases, both known and unknown, on the part of potential

jurors.” Id. When reviewing Juror 10’s voir dire answers on a habeas appeal, we


                                            2
must be mindful that unlike the trial judge, we were not present in the courtroom.

This matters because in determining juror challenges, a trial “judge’s appraisal is

ordinarily influenced by a host of factors impossible to capture fully in the record,”

including “inflection, sincerity, demeanor, candor, body language, and

apprehension of duty.” Skilling v. United States, 561 U.S. 358, 386 (2010).

Appellate courts lack such impressions, and so properly grant deference to the

ruling of the state trial court. Id.

       At the beginning of questioning, some of Juror 10's answers raised

legitimate concerns. When asked whether she would follow the instruction on the

presumption of innocence, she responded, “I don’t know. I think I’ve probably

already in my mind decided.” When asked what that decision was, she said, “I just

think if [the defendant]’s made it this far, it wasn’t for doing nothing.” She also

stated that she did not think she could be fair and impartial and that as things stood

at the time, she would “lean towards guilty.”

       But after a lengthy explanation by the court about the presumption of

innocence, the juror’s role, and what does and does not count as evidence, Juror 10

began to answer differently. When asked whether she could put aside her

assumptions concerning the defendant’s arrest and charging and decide strictly

based on the law and evidence, she responded, “Yeah, I guess.” After another


                                           3
lengthy explanation, this time by the prosecutor and followed by further

questioning, Juror 10 came around. She responded affirmatively to questions

about whether she could apply the presumption of innocence, whether she could

find the defendant not guilty if the evidence did not persuade her beyond a

reasonable doubt, and whether she could find him guilty if the evidence did so

persuade her. Hurtado notes that at one point after both the court and prosecutor

had given their explanations, Juror 10 answered a question about the presumption

of innocence and deciding based on the evidence with “I don’t know.” But Juror

10 made clear that her concern at that point was not with whether she could fairly

and properly decide based on the evidence. Rather, she was unsure whether she

was allowed to contradict her earlier statements indicating her inability to do so.

The prosecutor explained that Juror 10 was being asked to follow the rules of the

trial notwithstanding her initial reactions, and Juror 10 responded that she could

follow the rules. By the end of questioning, the trial court had conducted a

sufficient inquiry to determine whether Juror 10 was biased, and the inquiry had

yielded sufficient answers regarding her ability to decide the case impartially and

based on the evidence. See Skilling, 561 U.S. at 386. In light of these answers and

the deference courts grant trial judges on issues of juror bias, we cannot say that




                                           4
the state appeals court’s decision was objectively unreasonable or contrary to

federal law established by the Supreme Court.

      AFFIRMED.




                                          5
