                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 27 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GARY LOUIS CORBRAY,                              No. 09-35834

              Petitioner - Appellant,            D.C. No. 2:09-cv-03034-EFS

  v.
                                                 MEMORANDUM *
MAGGIE MILLER-STOUT,

              Respondent - Appellee.



                    Appeal from the United States District Court
                      for the Eastern District of Washington
                     Edward F. Shea, District Judge, Presiding

                     Argued and Submitted February 10, 2012
                              Seattle, Washington

Before: SCHROEDER, ALARCÓN, and GOULD, Circuit Judges.

       Petitioner-Appellant Gary Louis Corbray (“Corbray”) appeals the district

court’s dismissal of his 28 U.S.C. § 2254 habeas corpus petition, in which he

challenges his jury conviction for child molestation. He contends that the district




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
court erred in concluding that his federal constitutional claims of ineffective

assistance of trial counsel and jury bias were procedurally barred.

      Corbray’s claim of ineffective assistance of trial counsel is procedurally

barred by Washington’s inadequate briefing rule. Pursuant to this rule,

Washington state courts require a petitioner to substantiate his factual allegations

in his personal restraint petition by either citing to the record or by providing

admissible evidence outside the record. See In re Rice, 828 P.2d 1086, 1092–93

(Wash. 1992) (citing Wash. R. App. P. 16.7(a)(2)(i)). This procedural bar is based

on independent and adequate state law. See Parmelee v. Fraker, No. C09-

5273BHS, 2010 WL 546933, at *8 (W.D. Wash. 2010) (collecting cases from 1994

to 2008) (unpublished); see also State v. Ruiz, 138 Wash. App. 1021, 2007 WL

1229392, at *4 (Wash. App. Div. 3, Apr. 26, 2007) (unpublished); State v.

Crocker, 138 Wash. App. 1008, 2007 WL 1129574, at *4–5 (Wash. App. Div. 2,

Apr. 17, 2007) (unpublished); State v. Gilbert, 126 Wash. App. 1022, 2005 WL

583635, at *2 (Wash. App. Div. 1, Mar. 14, 2005) (unpublished); In re DiBartolo,

115 Wash. App. 1008, 2003 WL 116155, at *1, 12 (Wash. App. Div. 3, Jan. 14,

2003) (unpublished); State v. Otto, 97 Wash. App. 1084, 1999 WL 1028782, at

*2–3 (Wash. App. Div. 3, Nov. 12, 1999) (unpublished). Corbray has not provided

citation to any authority to the contrary. See Bennett v. Mueller, 322 F.3d 573, 586


                                           2
(9th Cir. 2003) (reasoning that “[o]nce the state has adequately pled the existence

of an independent and adequate state procedural ground” the remaining issues shift

to the petitioner).

       Here, the Washington Supreme Court, on collateral attack, expressly relied

on this established procedural bar, ruling that Corbray’s ineffective assistance of

trial counsel claim consisted of “conclusory allegations unsupported by any

citation to the record or to admissible evidence.” The district court thus properly

found that Corbray’s procedural default barred federal habeas review of this claim.

On appeal, we find no reason to lift this procedural bar because Corbray has failed

to show “actual prejudice as a result of the alleged violation of federal law” or a

fundamental miscarriage of justice. See Coleman v. Thompson, 501 U.S. 722, 750

(1991).

       Corbray’s jury bias claim, however, is not procedurally barred from federal

habeas review by Washington’s relitigation rule, see In re Taylor, 717 P.2d 755,

758 (Wash. 1986). The U.S. Supreme Court has held that state relitigation bars,

while presenting a barrier to further state review, have “nil” effect on the

availability of federal habeas review. See Wellons v. Hall, 130 S. Ct. 727, 730

(2010); Cone v. Bell, 129 S. Ct. 1769, 1781 (2009); Ylst v. Nunnemaker, 501 U.S.




                                           3
797, 804 n.3 (1991); see also Pirtle v. Morgan, 313 F.3d 1160, 1168 (9th Cir.

2002).

         Even though Corbray’s jury bias claim is not procedurally barred, it lacks

merit. The Washington Court of Appeals, on direct review, found that the trial

court properly held a fact-finding hearing to determine if the alleged juror

misconduct occurred, and the Court of Appeals concluded that the trial court did

not abuse its discretion in finding it had not. This conclusion is not inconsistent

with U.S. Supreme Court precedent. See Smith v. Phillips, 455 U.S. 209, 215–18

(1982) (reversal not required where a juror applied for employment in the District

Attorney’s Office during trial and the trial judge held a post-trial hearing to

determine prejudice); Remmer v. United States, 347 U.S. 227, 228–30 (1954)

(hearing required to determine prejudice where a third party attempted to bribe the

jury foreman); Mattox v. United States, 146 U.S. 140, 142–43, 153 (1892) (opining

that a new trial was warranted where the jury was exposed to extrinsic record facts

and public opinion). We accordingly conclude that Corbray is not entitled to a new

trial on his impartial jury claim because the state court decision on the merits was

not “contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States.” §

2254(d)(1); see also Harrington v. Richter, 131 S. Ct. 770, 785 (2011).


                                            4
AFFIRMED.




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