                                                                            FILED
                           NOT FOR PUBLICATION
                                                                            SEP 22 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


JOSE LUIS LEON,                                  No. 13-55705

              Petitioner - Appellant,            D.C. No. 3:09-cv-02219-LAB-
                                                 WMC
 v.

MATTHEW CATE,                                    MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                     Argued and Submitted September 1, 2015
                              Pasadena, California

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

      Jose Leon appeals from the district court’s judgment denying his 28 U.S.C.

§ 2254 habeas corpus petition. Reviewing the district court’s denial of the petition

de novo, Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011), we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                                                            Page 2 of 3
      1. Leon contends that his Fourteenth Amendment due process rights were

violated because the state trial court failed to follow California law in accepting the

jury’s verdict and denying his motion for new trial. See Hicks v. Oklahoma, 447

U.S. 343, 346 (1980). To the extent Leon argues that the trial court accepted a

less-than-unanimous verdict against him on the gang enhancement, contrary to

California law, he is mistaken. The jury returned a verdict, the clerk read it in open

court, the jury collectively affirmed it without dissent, and it was recorded. Under

California law, the validity of the verdict was not subject to attack at that point

unless Leon established that the jury committed prior misconduct in reaching the

verdict. See Cal. Penal Code § 1181; People v. Bento, 76 Cal. Rptr. 2d 412,

418–20 (Ct. App. 1998); People v. Peavey, 178 Cal. Rptr. 520, 522–23 (Ct. App.

1981).

      2. Leon contends that he established jury misconduct because the jury failed

to deliberate on the gang enhancement. The state trial court found, however, that

there was no “reason in law or fact” for it to grant Leon’s motion for new trial on

the basis of jury misconduct. That determination was not unreasonable in light of

the record before the state court. See 28 U.S.C. § 2254(d)(2). Although Juror No.

12 stated in open court that the jury had not deliberated on the gang enhancement

against Leon, his or her statements were unsworn, somewhat equivocal, and
                                                                            Page 3 of 3
inconsistent with more extensive evidence that the jury had deliberated and agreed

on the gang enhancement. That evidence included (1) the jury’s collective

affirmation of the verdict, including the gang enhancement, before it was recorded;

(2) all eleven remaining jurors’—including Juror No. 12’s—individual affirmation

of the verdict, including the gang enhancement, in the first round of polling after

the verdict was recorded; and (3) the ten other remaining jurors’ continued

individual affirmation of the verdict in the second round of polling,

notwithstanding Juror No. 12’s statements. The state courts reasonably concluded

from this record that the jury had deliberated and reached a unanimous verdict on

the gang enhancement. Because Leon failed to establish that the jury had engaged

in misconduct, the denial of his motion for a new trial did not violate his right to

due process.

      3. Leon’s motion to expand the certificate of appealability is denied. See

9th Cir. R. 22–1(e); Hiivala v. Wood, 195 F.3d 1098, 1104–05 (9th Cir. 1999) (per

curiam).

      AFFIRMED.
                                                                              FILED
Leon v. Cate, No. 13-55705
                                                                               SEP 22 2015
Rawlinson, Circuit Judge, concurring in the judgment.
                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
       I concur in the ruling affirming the denial of habeas relief. I write separately

because I do not rely on California law to support affirmance of the district court’s

decision.

       On habeas review, compliance with state law is not determinative of the

outcome. Indeed, if the state court failed to comply with California law, such

failure would not justify habeas relief. See Loftis v. Almager, 704 F.3d 645, 647

(9th Cir. 2012) (citation omitted). (“It is axiomatic that habeas relief lies only for

violations of the Constitution, laws, or treaties of the United States; errors of state

law will not suffice. . . .”) (citation omitted); see also Holley v. Yarborough, 568

F.3d 1091, 1101 (9th Cir. 2009) (The issue for us, always, is whether the state

proceedings satisfied due process; the presence or absence of a state law violation

is largely beside the point. . . .) (citation omitted).

       In assessing a due process claim under the Antiterrorism and Effective Death

Penalty Act of 1996, we evaluate whether the challenged state court decision was

so fundamentally flawed that the petitioner was deprived of a fair trial under

clearly established federal law. See Holley, 568 F.3d 1091 at 1101 (explaining that

habeas relief is warranted when constitutional errors have rendered a trial



                                              1
fundamentally unfair under “clearly established Federal law . . .”) (quoting 28

U.S.C. § 2254(d).

      Petitioner’s due process claim was predicated on his assertion that the jury

failed to deliberate regarding the gang enhancement. However, as noted by the

majority, after questioning members of the jury, the trial court determined that the

jury did deliberate regarding the gang enhancement. This finding was not an

unreasonable determination of fact, no due process violation/fundamental

unfairness occurred, and habeas relief is unavailable on these facts. See 28 U.S.C.

§ 2254(d)(2) (precluding habeas relief absent “an unreasonable determination of

the facts” by a state court); see also Holley, 568 F.3d at 1101 (precluding habeas

relief absent fundamental unfairness resulting in a lack of due process). I would

deny habeas relief on this basis.




                                          2
