                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                         FILED
                            FOR THE NINTH CIRCUIT                             JUL 23 2013

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

JESSIE HEREDIA,                                   No. 12-55796

              Petitioner - Appellee,              D.C. No. 2:09-cv-03669-RGK-
                                                  DTB
  v.

LARRY SMALL, Warden,                              MEMORANDUM*

              Respondent - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                         Argued and Submitted July 9, 2013
                               Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

       The district court granted Jessie Heredia’s petition for a writ of habeas

corpus after concluding that the trial judge’s decision to discharge a juror (“Juror

No. 9”) under California Penal Code § 1089 violated Heredia’s Sixth Amendment

rights. The district court determined that the California Court of Appeal had not



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
adjudicated Heredia’s constitutional claims on the merits, and that the

Antiterrorism and Effective Death Penalty Act of 1996’s (“AEDPA”) deferential

standards of review thus did not apply. See 28 U.S.C. § 2254(d).

      While respondent Larry Small’s appeal was pending in this court, the

Supreme Court decided Johnson v. Williams, 133 S. Ct. 1088 (2013), which held

that “[w]hen a state court rejects a federal claim without expressly addressing that

claim, a federal habeas court must presume that the federal claim was adjudicated

on the merits—but that presumption can in some limited circumstances be

rebutted.” Id. at 1096. Williams squarely controls our review of this case. As in

Williams, the California Court of Appeal evaluated Heredia’s juror dismissal claim

under state law, but made no express reference to his accompanying federal

constitutional claims. Applying Williams, we must presume—subject to

rebuttal—that the California Court of Appeal adjudicated Heredia’s constitutional

claims on the merits.

      Heredia cannot rebut that presumption here. Heredia argues that because the

California Court of Appeal’s opinion in his case does not cite any federal authority,

his case is distinguishable from Williams, where the state court cited a United

States Supreme Court case. But in dismissing Heredia’s appeal, the California

Court of Appeal cited a state case, People v. Barnwell, 162 P.3d 596 (Cal. 2007),


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which concerned a defendant’s Sixth Amendment challenge to the removal of a

juror for failing to deliberate. Id. at 604. The defendant in Barnwell raised only

state and federal constitutional challenges; the case did not discuss the California

statutes that Heredia alleges were the sole focus of the Court of Appeal’s decision

in his case. The Barnwell citation is sufficient indication that the California Court

of Appeal considered Heredia’s federal constitutional claims.

      The California Court of Appeal’s decision also cited—albeit on a different

point—People v. Cleveland, 21 P.3d 1225 (Cal. 2001), which the Supreme Court

discussed in Williams. The Supreme Court remarked that “it is difficult to imagine

any panel of appellate judges reading Cleveland and passing on the propriety of

dismissing a holdout juror under § 1089 without realizing that such situations also

bear on the federal constitutional right to a fair trial.” Williams, 133 S. Ct. at

1098–99. The California Court of Appeal’s citation to Cleveland is thus further

evidence that it considered and rejected Heredia’s constitutional claims.

      Heredia has failed to rebut the Williams presumption that the state court

rejected his federal constitutional claims on the merits. Our review is therefore

confined by the standards set out in 28 U.S.C. § 2254(d).

      Turning to the substance of Heredia’s claims, he first argues that the state

court erred in its factual determination that Juror No. 9 was biased and therefore


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unfit for service under California Penal Code § 1089. We are unable to grant relief

under AEDPA unless we conclude that the state court reached “an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding.” 28 U.S.C. § 2254(d)(2).

      The state court did not make an unreasonable determination of the facts

supporting its decision to remove Juror No. 9. After receiving three notes signed

by other jurors that alleged conduct and statements by Juror No. 9 exhibiting a

strong bias against all police and prosecutors, the trial court conducted a hearing to

further investigate the matter. The court interviewed six jurors, including Juror

No. 9, before ultimately concluding, based on explicit credibility determinations,

that Juror No. 9 should be removed due to his inability to render a fair and

unbiased verdict. Having reviewed the transcripts of the jurors’ interviews, we

cannot say that the trial court’s conclusion was unreasonable in light of the

evidence before it. This is especially true given that the trial court rested its

conclusion on an assessment of the jurors’ credibility. Thus, Heredia cannot

prevail on his claim for relief under 28 U.S.C. § 2254(d)(2).

      Heredia also argues that the trial court’s juror interviews violated his Sixth

Amendment jury trial right. Under AEDPA, we can grant relief only if the state

court’s resolution of Heredia’s Sixth Amendment claim “was contrary to, or


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involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).

No existing Supreme Court precedent establishes that juror interviews conducted

for the purpose of responding to jurors’ complaints of bias during deliberations

violate a defendant’s constitutional rights. Accordingly, we must deny relief.

      REVERSED.




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