                                                                               FILED
                            NOT FOR PUBLICATION
                                                                                JUL 20 2020
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


ALFRED PAUL CENTOFANTI III,                      No.    20-16039

              Petitioner-Appellant,              D.C. No.
                                                 2:13-cv-01080-JAD-PAL
 v.

DWIGHT W. NEVEN; ATTORNEY                        MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,

              Respondents-Appellees.


                    Appeal from the United States District Court
                              for the District of Nevada
                    Jennifer A. Dorsey, District Judge, Presiding

                         Argued and Submitted July 8, 2020
                               Seattle, Washington

Before: CLIFTON, D.M. FISHER,** and M. SMITH, Circuit Judges.

      Petitioner Alfred Paul Centofanti III seeks a writ of mandamus directing the

federal district court to order his release from Nevada state prison pending either


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
(i) a decision on his 28 U.S.C. § 2254 habeas petition or (ii) an effective COVID-

19 vaccine. We deny the petition.

      “The remedy of mandamus is a drastic one.” Bauman v. U.S. Dist. Court,

557 F.2d 650, 654 (9th Cir. 1977). A petitioner must demonstrate “exceptional

circumstances amounting to a judicial ‘usurpation of power.’” Id. (internal

quotation marks and citation omitted). To determine whether mandamus relief is

warranted, we consider “five specific guidelines: (1) The party seeking the writ has

no other adequate means, such as a direct appeal, to attain the relief he or she

desires;” “(2) The petitioner will be damaged or prejudiced in a way not

correctable on appeal. (This guideline is closely related to the first.);” “(3) The

district court’s order is clearly erroneous as a matter of law;” “(4) The district

court’s order is an oft-repeated error, or manifests a persistent disregard of the

federal rules;” and “(5) The district court’s order raises new and important

problems, or issues of law of first impression.” Id. at 654–55 (citations omitted).

While “[n]ot every factor need be present at once . . . the absence of the third

factor, clear error, is dispositive.” Burlington N. & Santa Fe Ry. Co. v. U.S. Dist.

Court for Dist. of Mont., 408 F.3d 1142, 1146 (9th Cir. 2005).

      To qualify for pre-decisional release from state prison pending a federal

habeas petition, a petitioner must show that the habeas petition has a high


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probability of success and that special circumstances justify his release. See United

States v. Dade, 959 F.3d 1136, 1138 (9th Cir. 2020) (“the prisoner must show that,

‘in addition to there being substantial questions presented by the appeal, there is

some circumstance making this application exceptional and deserving of special

treatment in the interests of justice’”) (quoting Aronson v. May, 85 S. Ct. 3, 5

(1964)). See also Benson v. State of Cal., 328 F.2d 159, 162 (9th Cir. 1964) (“It

would not be appropriate for us at this stage of the proceeding to enlarge this

petitioner on bail even if we found that the allegations of his petition for habeas

corpus made out a clear case for his release. Something more than that is required

before we would be justified in granting bail.”).

      We conclude that the district court did not clearly err in holding that

Centofanti had not demonstrated that his habeas petition made out a clear case for

his release. After being convicted of first-degree murder in Nevada state court, he

seeks habeas relief on the grounds that one of the jurors did not disclose during

voir dire that she had once been convicted of a felony. He argues that her

participation in the jury violated his federal constitutional rights. He previously

made this argument to the Nevada Supreme Court, which disagreed. The court

concluded that while it appeared that the juror had intentionally concealed her

felony status, Centofanti had not shown that he was prejudiced by her conduct.


                                           3
This was because the juror’s two-decades’ old felony conviction—for obtaining

property in exchange for a worthless check—was entirely unrelated to Centofanti’s

murder charge. Because of this lack of prejudice, the court concluded that

Centofanti was not entitled to a new trial under the Sixth Amendment.

      Under the Antiterrorism and Effective Death Penalty Act (AEDPA), an

application for a writ of habeas corpus may only be granted if the state court’s

adjudication “(1) resulted in a decision that was contrary to, or involved an

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

Supreme Court of the United States; or (2) resulted in a decision that was based on

an unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d).

      In McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984),

the Supreme Court established when defendants are entitled to a new trial due to a

juror’s concealment. To obtain a new trial “in such a situation, a party must first

demonstrate that a juror failed to answer honestly a material question on voir dire,

and then further show that a correct response would have provided a valid basis for

a challenge for cause. The motives for concealing information may vary, but only

those reasons that affect a juror’s impartiality can truly be said to affect the fairness

of a trial.” McDonough, 464 U.S. at 556.


                                            4
      Courts have differed as to how to apply the McDonough test, but our court

has recently held that, for AEDPA purposes, it is not “unreasonable for [a] state

court to conclude that McDonough accommodates a prejudice analysis.” Scott v.

Arnold, __ F.3d __, No. 18-16761, 2020 WL 3408712, at *2 (9th Cir. June 22,

2020). See also Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (construing

McDonough as requiring courts to “determine whether [a juror’s] answers were

dishonest and, if so, whether this undermined the impartiality of [the] jury”). Thus,

under Ninth Circuit precedent, the Nevada Supreme Court was permitted to require

a prejudice showing to overturn a conviction, as it did in Centofanti’s case.

Moreover, it was permitted to hold that no prejudice had been shown.

      As a result, we cannot conclude that the federal district court clearly erred in

determining that Centofanti had not shown a high likelihood that his habeas

petition would succeed. For this reason, though we understand that Centofanti has

a high-risk status for COVID-19, we must deny his petition for mandamus relief.

      Petition DENIED.




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