                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                                MAY 29 2012

                                                                             MOLLY C. DWYER, CLERK
OLIVER ZOSA CLAVANO,                              No. 09-56708                U.S. COURT OF APPEALS



              Petitioner - Appellant,             D.C. No. 5:07-cv-00275-MMM-
                                                  JWJ
  v.

TONY HEDGEPATH, Warden,                           MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                   Margaret M. Morrow, District Judge, Presiding

                        Argued and Submitted May 11, 2012
                               Pasadena, California

Before: PREGERSON and GRABER, Circuit Judges, and CHEN,** District Judge.

       Petitioner Oliver Zosa Clavano appeals from the district court’s denial of his

federal habeas petition, raising a claim that the state trial judge unconstitutionally




        *
          This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
        The Honorable Edward M. Chen, United States District Judge for the
Northern District of California, sitting by designation.
coerced the jury’s verdict. Reviewing de novo, Lambert v. Blodgett, 393 F.3d 943,

964 (9th Cir. 2004), we affirm.

      Under the deferential standard of review, 28 U.S.C. § 2254(d)(1), Harrington

v. Richter, 131 S. Ct. 770, 785 (2011), the district court properly denied habeas

relief. The state appellate court correctly identified and applied the constitutional

rule announced in Lowenfield v. Phelps, 484 U.S. 231, 241 (1988). Because the

rule is a general one, Weaver v. Thompson, 197 F.3d 359, 366 (9th Cir. 1999), the

state court had "more leeway" in its application, Yarborough v. Alvarado, 541 U.S.

652, 664 (2004). Whatever we might have decided had the case arisen on direct

review, we cannot conclude that the state court’s application of Lowenfield here

was "unreasonable." 28 U.S.C. § 2254(d)(1).

      When the trial judge inquired as to whether more time would assist the jury,

at least two jurors gave equivocal answers. Additionally, as the trial court noted

during its charge, the trial and deliberations had been "chopped up," so it was

unclear whether the jury had been given a full opportunity to resolve the case. The

trial court never instructed the jurors to give up their firmly held views; the court

simply asked the jury to "try" for a "little while" longer to reach a verdict.

Moreover, defense counsel did not object to the trial court’s comments and

instructions to the jury. See Lowenfield, 484 U.S. at 240 (noting that the failure of


                                           2
defense counsel to object "indicates that the potential for coercion argued now was

not apparent to one on the spot"). Finally, as the state appellate court noted, the

tentative vote was 8 to 4. Although other factors supported the opposite

conclusion, the factors described above supported the state court’s determination

that the trial judge’s charge did not violate the Constitution. See Weaver, 197 F.3d

at 366 (listing the relevant factors).

      AFFIRMED.




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