                                                                             FILED
                       UNITED STATES COURT OF APPEALS                         APR 05 2010

                                                                         MOLLY C. DWYER, CLERK
                              FOR THE NINTH CIRCUIT                        U.S . CO U RT OF AP PE A LS




ROY C. RIVAS, Jr.,                                 No. 07-56165

                Petitioner - Appellant,            D.C. No. CV-04-01154-J(JMA)
                                                   Southern District of California,
  v.                                               San Diego

STUART J. RYAN,
                                                   ORDER WITHDRAWING
                Respondent - Appellee.             MEMORANDUM DISPOSITION
                                                   AND DENYING PETITION FOR
                                                   REHEARING AND
                                                   REHEARING EN BANC


Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.

         The memorandum disposition filed February 19, 2010 is withdrawn. A

superseding memorandum disposition is being filed concurrently with this order.

         The panel has voted to deny the petition for panel rehearing and to deny the

petition for rehearing en banc.

         The full court has been advised of the petition for rehearing en banc and no

judge has requested a vote on whether to rehear the matter en banc. Fed. R. App.

P. 35.
      The petition for panel rehearing and the petition for rehearing en banc are

denied. The panel will not entertain any additional petitions for rehearing or

rehearing en banc.
                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                            APR 05 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                           U.S . CO U RT OF AP PE A LS

ROY C. RIVAS, Jr.,                                No. 07-56165

              Petitioner - Appellant,             D.C. No. CV-04-01154-J(JMA)

  v.
                                                  MEMORANDUM *
STUART J. RYAN,

              Respondent - Appellee.



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

                      Argued and Submitted February 5, 2010
                               Pasadena, California

Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.

       Roy Rivas, a California state prisoner, appeals the district court's denial of

his 28 U.S.C. y 2254 habeas petition. Rivas argues he was denied a fair trial

because the jury foreman lied during voir dire. He further argues he was deprived

of a peremptory challenge because of the untruthful answers.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The California Court of Appeal did not unreasonably determine that the jury

foreman, Rudy Medina, answered all questions on voir dire truthfully. See 28

U.S.C. y 2254(d)(2). Medina himself brought the prior relationship with Rivas'

mother to the trial court's attention; the relationship had been brief and ended over

twenty years before the trial. The court reasonably determined that Medina did not

lie and therefore Rivas had failed to establish implied bias. See Fields v. Brown,

503 F.3d 755, 773 (9th Cir. 2007) (en banc). Rivas had a two day evidentiary

hearing in California Superior Court to establish that Medina was biased and failed

to do so. See id.

      Rivas also claims that Medina's untruthful answers deprived him of a

peremptory challenge. Because a state court's good-faith deprivation of a

peremptory challenge 'is not a matter of federal constitutional concern,' we reject

this claim as well. Rivera v. Illinois, 129 S. Ct. 1446, 1453 (2009).

      In reaching this result, we assume proper jurisdiction. Because the petition

lacµs merit, we need not address the State's argument that Evans v. Chavis, 546

U.S. 189 (2006), renders Rivas' petition untimely.

      AFFIRMED.




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