                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 15 2014

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



                           FOR THE NINTH CIRCUIT


EDWARD SANCHEZ, Jr.,                             No. 11-17636

              Petitioner - Appellant,            D.C. No. 2:01-cv-01694-LKK-
                                                 KJN
  v.

RALPH M. DIAZ, Warden;                           MEMORANDUM*
YARBOROUGH; ATTORNEY
GENERAL FOR THE STATE OF
CALIFORNIA,

              Respondents - Appellees.


                  Appeal from the United States District Court
                      for the Eastern District of California
               Lawrence K. Karlton, Senior District Judge, Presiding

                            Submitted May 13, 2014**
                             San Francisco, California


Before: GRABER, W. FLETCHER, and PAEZ, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
         California state prisoner Edward Sanchez, Jr., appeals from the district

court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction under 28 U.S.C. § 2253, and we affirm.

         The issues certified for appeal were (1) whether the jury committed

misconduct during deliberations by speculating that Sanchez would be “out in five

years” if he were found not guilty by reason of insanity; (2) whether a juror

committed misconduct by preparing a homemade chart and bringing it into the jury

room for deliberations; (3) whether trial counsel acted ineffectively when he

waived Sanchez’s jury misconduct claims by failing to argue orally the claims at

the motion for a new trial; and (4) whether trial counsel was ineffective for failing

to object or request an admonishment when the prosecutor, in violation of an in

limine ruling, elicited testimony that the State’s experts were appointed by the

court.

         We share the district court’s discomfort with this case. However, we cannot

say that the California state courts’ adjudication of Sanchez’s claims was

“objectively unreasonable” or contrary to clearly established Supreme Court

precedent. See Lockyer v. Andrade, 538 U.S. 63, 75 (2003).

         Even if trial counsel’s failure to argue the jury misconduct claims fell below

an objective standard of reasonableness, see Strickland v. Washington, 466 U.S.


                                           -2-
668, 688 (1984), testimony adduced at trial reasonably supports a conclusion that

any jury misconduct did not affect the verdict. Similarly, even if trial counsel’s

decision to refrain from requesting an admonition was unreasonable, Sanchez has

not shown a reasonable probability that the verdict would have been different had

the jury been admonished. See id. at 694.

      Sanchez does not challenge the California state courts’ conclusion that his

jury misconduct claims are procedurally defaulted. However, he argues that the

ineffective assistance of his trial counsel establishes “cause” to excuse the

procedural default. See Murray v. Carrier, 477 U.S. 478, 488 (1986). Because his

trial counsel’s assistance was not constitutionally ineffective, Sanchez cannot

establish cause to excuse his procedural default.

      We have considered Sanchez’s assertion that failure to grant the requested

habeas relief will result in a fundamental miscarriage of justice, and are not

persuaded. See Wood v. Ryan, 693 F.3d 1104, 1117–18 (9th Cir 2012) (citing

Schlup v. Delo, 513 U.S. 298, 327 (1995)), cert. denied, 134 S.Ct. 239 (2013).

      AFFIRMED.




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