                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


PAUL ANDY TURNER,                     No. 13-56385
      Petitioner-Appellant,
                                        D.C. No.
            v.                  5:11-cv-02069-VAP-JCG

L. S. MCEWEN, Warden,
       Respondent-Appellee.               OPINION


     Appeal from the United States District Court
         for the Central District of California
     Virginia A. Phillips, District Judge, Presiding

               Argued and Submitted
        March 11, 2016—Pasadena, California

                   Filed April 14, 2016

   Before: Richard R. Clifton, Consuelo M. Callahan,
          and Sandra S. Ikuta, Circuit Judges.

                 Opinion by Judge Clifton
2                      TURNER V. MCEWEN

                           SUMMARY*


                          Habeas Corpus

     The panel affirmed the district court’s denial of California
state prisoner Paul Andy Turner’s habeas corpus petition
challenging his conviction for attempted carjacking, in a case
in which Turner claimed that jurors’ observation of a
spectator directing the victim’s testimony at trial constituted
consideration of extrinsic evidence or extraneous information,
or otherwise violated his Sixth Amendment right to a fair
trial.

    The panel held that the California Court of Appeal, which
decided that juror misconduct did not occur in this case, could
not have unreasonably applied clearly established federal law,
given the lack of holdings from the Supreme Court regarding
the potentially prejudicial effect of spectators’ courtroom
conduct of the kind involved here. The panel wrote that the
general principles that a jury decides a case based on the
evidence produced at trial, and that the rights of confrontation
and cross-examination are fundamental to a fair trial, are not
sufficient to support a conclusion that the California Court of
Appeal unreasonably applied clearly established Supreme
Court precedent.




  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    TURNER V. MCEWEN                         3

                         COUNSEL

Hilary Potashner, Federal Public Defender, and Kathryn Ann
Young (argued), Deputy Federal Public Defender, Los
Angeles, California, for Petitioner-Appellant.

Kamala D. Harris, Attorney General of California, Julie L.
Garland, Senior Assistant Attorney General, and David
Delgado-Rucci and Neru Joy Utomi (argued), Deputy
Attorneys General, San Diego, California, for Respondent-
Appellee.


                         OPINION

CLIFTON, Circuit Judge:

    Petitioner Paul Andy Turner was convicted of attempted
carjacking following a jury trial in a California state court.
The victim identified him in a photographic lineup shortly
after the crime. At trial, however, the victim professed not to
be able to identify Turner and testified that he was drunk and
angry at the time of the initial identification. While he
testified, a woman sat as a spectator shaking her head. Some
of the jurors observed that action, and later said that they
believed that the woman was the victim’s mother and that she
was directing him not to identify Turner. Neither the trial
judge nor the attorneys noticed the woman’s actions at the
time. After the jury returned a guilty verdict, the trial court
denied Turner’s motion for a new trial, and the conviction
was affirmed on appeal. Turner sought habeas relief in
federal court, contending, among other arguments, that his
conviction was tainted because the jurors’ verdict was
4                   TURNER V. MCEWEN

influenced by something other than evidence admitted during
the trial. This district court dismissed Turner’s petition.

    The central issue before us is whether the decision of the
California Court of Appeal rejecting Turner’s claim is
contrary to, or involves an unreasonable application of,
clearly established federal law as determined by the Supreme
Court. We conclude that there is no clearly established
Supreme Court precedent that speaks to Turner’s claim and
therefore affirm the district court’s denial of Turner’s habeas
petition.

I. Background

    On September 11, 2006, after a night with friends at a
dance club in San Bernardino, Tillford Smith stopped to eat
at a Denny’s Restaurant in Colton, California. As he left the
restaurant, he was approached by a man with a gun. Smith
punched the man, and the man shot him in the shin and thigh.

    Smith was taken to an emergency room, where Police
Corporal Henry Dominguez showed him a photographic
lineup. Smith identified Turner as his assailant. Smith told
Corporal Dominguez that Turner had approached him with a
gun, asked him for his car keys, and shot him following a
tussle. Smith also identified a man that he had seen with
Turner in the restaurant prior to the incident. According to
Corporal Dominguez, Smith seemed angry and smelled of
alcohol during their conversation, but was cooperative and
coherent.

    Turner was ultimately arrested for the crime. He was
tried in April 2008 on two charges: attempted carjacking (Cal.
                         TURNER V. MCEWEN                                   5

Penal Code §§ 664, 215(a)) and second degree robbery (Cal.
Penal Code § 211).

    At trial, Smith testified that he could not recognize the
man who shot him because two years had passed and he had
been drunk at the time of the incident. When presented with
the photographic lineup he had seen the day of the shooting,
Smith denied that his assailant was pictured. Smith also
testified that he did not remember telling Corporal
Dominguez about seeing another person with his assailant
and did not remember identifying this person in a lineup.
Smith indicated that he did not really remember Corporal
Dominguez, either. He testified that his state of mind was not
“very good” at the time of his conversation with Corporal
Dominguez, explaining that he was drunk, angry, and his
adrenaline was pumping.

    Turner was convicted of attempted carjacking, with a
finding that he personally discharged a firearm, causing great
bodily injury (Cal. Penal Code § 12022.53(d)).1 The jury was
unable to reach a verdict on the second degree robbery
charge, and that count was dismissed.

   Following the verdict, counsel for both sides spoke with
some of the jurors about the case. When asked about their
impression of Smith’s testimony, some of them stated that

 1
   Evidence in addition to Smith’s photographic lineup identification was
presented against Turner at trial. Turner does not challenge his conviction
on the ground that the evidence was insufficient to support a verdict, see
Jackson v. Virginia, 443 U.S. 307, 318–19 (1979), but he does argue that
the other evidence was not strong enough to support a verdict independent
of Smith’s identification, disputing that any error might have been
harmless. In light of our resolution of his primary claim, it is not necessary
for us to evaluate the strength of the other evidence.
6                   TURNER V. MCEWEN

they saw a woman in the audience they believed to be
Smith’s mother shaking her head while Smith was being
asked to identify Turner in a photo lineup. The jurors
interpreted this as Smith’s mother directing him not to
identify Turner. The jurors indicated that this incident
affected their assessment of Smith’s credibility.

    In response, Turner requested that the trial court release
information about the jurors so that a defense investigator
could contact them. The trial court denied the request,
concluding that a prima facie case for release of the
information had not been established. The trial court noted
that the parties were willing to stipulate as to what the jurors
conveyed to counsel following the trial, such that “any further
information from jurors would either only corroborate that
and would be unnecessary, or would lead to what may have
happened during jury deliberations,” which would be
inadmissible.

   The parties did in fact stipulate as to information received
from the jurors. The stipulation stated:

       1) After the jury returned a verdict in the
       above-referenced case, the Deputy District
       Attorney assigned to this case and counsel for
       defendant spoke to some of the jurors
       regarding the case;

       2) When asked about their impression of the
       testimony of Joel Tillford Smith, the
       complaining witness in count 2, several of the
       jurors remarked that they saw a person who
       they believed was Mr. Smith’s mother
                    TURNER V. MCEWEN                          7

       shaking her head as if she were directing Mr.
       Smiths’s [sic] testimony;

       3) The jurors said that this happened when
       Mr. Smith was being asked to pick the
       defendant out of a photo lineup shown to him
       by the prosecutor during the trial;

       4) The jurors said that they believed that she
       was directing the witness to not identify the
       defendant.

    Turner filed a motion for a new trial. He argued that he
was entitled to a new trial based on the jury’s receipt of
evidence out of court and juror misconduct. The trial court
denied Turner’s motion, explaining that the alleged conduct
occurred in open court while a witness was testifying. The
jurors’ observations that a spectator may have been directing
a witness’s testimony were, according to the trial court,
“appropriate in assessing the overall credibility and
believability of the witness.” The trial court also noted that
the jurors had no obligation to report their observations given
that they were made in open court while testimony was
underway.

    Following the denial of his motion for a new trial, Turner
was sentenced to four years and six months for the attempted
carjacking, plus 25 years to life for the section 12022.53(d)
weapons-use enhancement.

    Turner appealed. His arguments included contentions that
his constitutional rights were violated by: (1) juror
misconduct; (2) the trial court’s failure to conduct an
evidentiary hearing on his motion for a new trial; (3) the trial
8                   TURNER V. MCEWEN

court’s denial of his motion to release juror information; and
(4) spectator misconduct. The California Court of Appeal
affirmed.

   With respect to Turner’s juror misconduct argument, the
Court of Appeal noted:

       While it is clearly misconduct for a juror to
       bring independently obtained evidence that
       was not presented at trial into deliberations,
       we are unaware of any case that holds it is
       misconduct for a juror to pay attention in the
       courtroom or to discuss during deliberations
       the juror’s observations in the courtroom.

The court viewed the alleged misconduct as “no different
than a juror expressing to other jurors that a witness looked
like he was lying.” The conduct observed “occurred in open
court and [was] subject to contradiction or qualification by
the other jurors.” The court also stated that:

       The jurors could not be expected to recognize
       that these actions should be ignored when the
       trial court and parties (who did not see the
       woman’s actions) said nothing about her
       behavior. Having been instructed that they
       could consider anything in determining the
       witness’s credibility, including the witness’s
       demeanor while testifying, they certainly did
       not commit misconduct by considering the
       woman’s actions and its impact on Smith’s
       testimony. We might hold differently if the
       trial court were to have admonished the jurors
       to ignore the woman’s gestures and they
                   TURNER V. MCEWEN                       9

       disregarded the admonition, but in this case,
       the jurors did not commit misconduct by
       following the trial court’s given instructions.

    With respect to whether the jurors’ observations
prejudiced Turner, the California Court of Appeal concluded
that there had been no showing of inherent bias or a
substantial likelihood of juror bias. The court stated that:

       The information the jurors received was
       something that the jurors already knew or
       should have known: Smith clearly had
       changed his story by the time of trial. The
       jurors were well aware that something, or
       someone, could have been influencing Smith
       to change his identification of defendant at
       trial. The prosecutor suggested in closing
       argument that it was because Smith was
       afraid. The fact that the jurors may have also
       believed that Smith was told by his family not
       to identify defendant presented a different
       explanation for Smith’s recanting at trial.
       However, this did not impart any new
       information pertinent to defendant’s
       conviction and did not show bias on behalf of
       the jurors.

The court also stated that Corporal Dominguez had testified
credibly and that there was other evidence to support the
jury’s verdict in the record.

   Turner filed a petition for review with the California
Supreme Court. The petition for review was denied without
comment.
10                  TURNER V. MCEWEN

    Turner then filed a habeas corpus petition under 28 U.S.C.
§ 2254 in federal district court. The magistrate judge
recommended denial of the petition and dismissal of the
action with prejudice. With respect to Turner’s juror
misconduct claim, the magistrate judge concluded, as had the
California Court of Appeal, that there was no substantial
likelihood of juror bias because the jury’s observation of the
spectator did not provide it with any new information relevant
to the conviction. The magistrate judge also noted that the
California Court of Appeal reasonably found that evidence
unrelated to Smith’s testimony supported the jury’s verdict.

    The district judge approved and accepted the magistrate
judge’s Report and Recommendation. The district court
entered judgment denying Turner’s petition and dismissing
his action with prejudice. The district court declined to issue
a certificate of appealability. Turner filed a notice of appeal.

    This court granted Turner’s request for a certificate of
appealability on the claim that the jurors’ observation of a
spectator directing a witness’s testimony constituted
consideration of “extrinsic evidence” or “extraneous
information,” or otherwise violated Turner’s Sixth
Amendment right to a fair trial.

II. Discussion

   We review a district court’s denial of a habeas petition
under 28 U.S.C. § 2254 de novo. Stanley v. Cullen, 633 F.3d
852, 859 (9th Cir. 2011).

    The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) establishes a “highly deferential standard
for evaluating state-court rulings.” Woodford v. Visciotti,
                     TURNER V. MCEWEN                         11

537 U.S. 19, 24 (2002) (quoting Lindh v. Murphy, 521 U.S.
320, 333 n. 7 (1997)). Under AEDPA, habeas relief may be
awarded only if the last reasoned state court decision on the
merits:

        (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); see Robinson v. Ignacio, 360 F.3d 1044,
1055 (9th Cir. 2004).

    The phrase “clearly established Federal law” refers to “the
holdings, as opposed to the dicta” of Supreme Court decisions
“as of the time of the relevant state-court decision.” Williams
v. Taylor, 529 U.S. 362, 412 (2000). If Supreme Court
precedent does not provide a “clear answer to the question
presented,” the state court’s decision cannot be contrary to, or
have unreasonably applied, clearly established federal law.
Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam).

    We conclude that to be the situation here. There is no
clearly established federal law sufficiently related to the facts
of Turner’s case upon which he can rely to support his claim.

   Carey v. Musladin, 549 U.S. 70 (2006), makes that clear.
Musladin was charged and convicted of first degree murder.
He claimed that he was denied a fair trial because members
12                  TURNER V. MCEWEN

of the victim’s family wore buttons displaying the victim’s
picture on them while sitting in the spectator gallery during
the trial. Id. at 72. The Supreme Court rejected our court’s
conclusion that the state court’s decision denying Musladin’s
claim was contrary to, and an unreasonable application of,
clearly established federal law. Id. at 74, 77. This court had
held that Williams v. Taylor, 529 U.S. 362 (2000), and
Holbrook v. Flynn, 475 U.S. 560 (1986), constituted clearly
established law regarding inherent prejudice that the state
court failed to apply to Musladin’s case. The Supreme Court
disagreed with our court’s assessment, concluding that
Williams, which addressed a requirement that a defendant
appear at trial in prison clothing, and Flynn, which concerned
uniformed state troopers sitting in the courtroom during trial,
involved circumstances unlike those presented in Musladin’s
case because those cases “dealt with government-sponsored
practices.” Musladin, 549 U.S. at 75. The spectators whose
conduct was the subject of Musladin’s complaint were private
citizens. That was different, according to the Court:

       In contrast to state-sponsored courtroom
       practices, the effect on a defendant’s fair-trial
       rights of the spectator conduct to which
       Musladin objects is an open question in our
       jurisprudence.      This Court has never
       addressed a claim that such private-actor
       courtroom conduct was so inherently
       prejudicial that it deprived a defendant of a
       fair trial. And although the Court articulated
       the test for inherent prejudice that applies to
       state conduct in Williams and Flynn, we have
       never applied that test to spectators’ conduct.

Id. at 76 (footnote omitted).
                     TURNER V. MCEWEN                         13

    Turner’s claim is essentially the same. The spectator
about whom he complains, Smith’s mother, was a private
actor like the button-wearing spectators in Musladin’s trial.
Turner expresses his claim in terms of the impact on the jury
rather than the conduct of the spectators, but that is the same
claim repackaged in different wrapping paper. Spectator
conduct is relevant to a defendant’s right to a fair trial
because of its potential effect on the jury. Turner’s claim that
his jury was improperly influenced by the actions of Smith’s
mother is at its core identical to Musladin’s claim that his jury
was improperly influenced by the buttons worn by the
relatives of his victim. Musladin establishes that the Supreme
Court has not clearly spoken on such claims.

    Turner attempts to distinguish Musladin by arguing that
it was limited to considering whether “private-actor
courtroom conduct was so inherently prejudicial that it
deprived a defendant of a fair trial.” Id. Turner argues that
his case involved not just inherent prejudice but actual
prejudice. It is not clear that Musladin was so limited, as it
spoke not just of inherent prejudice but also of the
“potentially prejudicial effect” of spectator conduct. Id. at
77.

    More importantly, Turner cannot identify a Supreme
Court decision that established law in contradiction to the
California Court of Appeal’s conclusion that the jurors’
consideration of the spectator’s actions was not misconduct
in the first place. The California court accepted the
proposition that “[a] juror who consciously receives outside
information regarding the case . . . commits misconduct.”
But it did not view the spectator’s actions as something that
was “outside,” as it took place in the courtroom and was
something the jurors could properly observe. As the
14                   TURNER V. MCEWEN

California court stated, it was “unaware of any case that holds
it is misconduct for a juror to pay attention in the courtroom.”
Turner has failed to identify a Supreme Court decision to the
contrary.

    Instead, Turner points to other Supreme Court cases that
he argues establish the more general principle that a jury may
rely only on evidence presented at trial in reaching its verdict.
In Turner v. Louisiana, 379 U.S. 466 (1965), for instance, the
Court stated that:

        In the constitutional sense, trial by jury in a
        criminal case necessarily implies at the very
        least that the ‘evidence developed’ against a
        defendant shall come from the witness stand
        in a public courtroom where there is full
        judicial protection of the defendant’s right of
        confrontation, of cross-examination, and of
        counsel.

Id. at 472–73. In the Court’s view, “[t]he requirement that a
jury’s verdict ‘must be based upon the evidence developed at
the trial’ goes to the fundamental integrity of all that is
embraced in the constitutional concept of trial by jury.” Id.
at 472 (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)).
Turner contends that the California Court of Appeal, in
rejecting his juror misconduct claim, unreasonably applied
that clearly established principle.

    Turner v. Louisiana involved contacts with jurors outside
the courtroom, however. The problem in that case was that
a sequestered jury was placed in the custody of deputy
sheriffs who maintained a “close and continual association
with the jurors.” Id. at 468. Those deputies included two
                    TURNER V. MCEWEN                         15

who were key witnesses at trial. The Court recognized “the
potentialities of what went on outside the courtroom during
the three days of the trial.” Id. at 473.

    The claim presented to us in the current case is different
from that. There is no claim of contact or influence with the
jury outside the courtroom. The objection is focused entirely
on the in-courtroom conduct of the woman believed to be
Smith’s mother, shaking her head while Smith testified. The
California court expressly drew a distinction between what
happened inside the courtroom and precedents regarding what
happened outside. If “state-sponsored” actions within a
courtroom such as those at issue in Williams and Flynn were
too dissimilar to establish law applicable to conduct by
private actors in the courtroom, as the Court held in
Musladin, then cases regarding actions outside the courtroom,
such as Turner v. Louisiana, cannot suffice to constitute
clearly established law applicable to this situation, either.

    The Supreme Court has repeatedly warned against
applying its precedents at too high a level of generality in
determining whether a state court’s decision unreasonably
applied clearly established federal law. See, e.g., Nevada v.
Jackson, 133 S. Ct. 1990, 1994 (2013) (“By framing our
precedents at such a high level of generality, a lower federal
court could transform even the most imaginative extension of
existing case law into ‘clearly established Federal law, as
determined by the Supreme Court.’” (quoting 28 U.S.C.
§ 2254(d)(1))). Turner’s argument is premised on the kind of
generality we are to avoid. The Supreme Court precedents he
cites do not “squarely address[] the issue in this case” or give
a “clear answer to the question presented.” Van Patten,
552 U.S. at 125, 126.
16                       TURNER V. MCEWEN

III.     Conclusion

    The California Court of Appeal’s decision in Turner’s
case could not have unreasonably applied clearly established
federal law “[g]iven the lack of holdings from [the Supreme]
Court regarding the potentially prejudicial effect of
spectators’ courtroom conduct of the kind involved here.”
Musladin, 549 U.S. at 77. The general principles that a jury
decides a case based on the evidence produced at trial, and
that the rights of confrontation and cross-examination are
fundamental to a fair trial, are not sufficient to support a
conclusion that the California Court of Appeal unreasonably
applied clearly established Supreme Court precedent in
concluding that juror misconduct did not occur in this case.
For that reason, we must affirm the district court’s denial of
habeas relief.2

       AFFIRMED.




  2
    Turner has briefed other issues as to which he has not been given a
certificate of appealability. This court construes that briefing as a request
to expand the scope of the certificate of appealability. Delgadillo v.
Woodford, 527 F.3d 919, 930 (9th Cir. 2008); Ninth Circuit Rule 22-1(e).
To expand the certificate of appealability, a petitioner must make a
“substantial showing of the denial of a constitutional right,” 28 U.S.C.
§ 2253(c)(2), accomplished by “demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or
that jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further,” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003). Turner has failed to make that showing with respect to the
uncertified issues he raises and we accordingly decline to expand the
certificate of appealability.
