                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              DEC 02 2014

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

AMANDO ZOSA CLAVANO,                             No. 11-55288

              Petitioner - Appellant,            D.C. No. 5:07-cv-00276-SVW-OP

  v.
                                                 MEMORANDUM*
P. D. BRAZELTON, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                   Stephen V. Wilson, District Judge, Presiding

                    Argued and Submitted November 17, 2014
                              Pasadena, California

Before: SCHROEDER, PREGERSON, and NGUYEN, Circuit Judges.

       Petitioner Amando Clavano (“Amando”) appeals the district court’s denial

of his 28 U.S.C. § 2254 habeas corpus petition. Amando was convicted of first

degree murder, along with his brother Oliver, for shooting James Townsend after

Townsend had stolen their car stereo/radio. Amando contends there was



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
unconstitutional jury coercion, a Confrontation Clause violation, and sentencing

error.

         The jury reported that it had been deadlocked after 13½ hours of

deliberation, in three different sessions over approximately 9 days, with lengthy

read backs and a six-day hiatus. The trial court sent the jury back to deliberate, but

only after inquiring about the numerical division of the jury as to guilt and

innocence.

         This court decided Oliver’s appeal in 2012. Clavano v. Hedgepath, 473 F.

App’x 747 (9th Cir. 2012). The panel specifically noted the factors that supported

the state court’s ruling that there was no undue coercion, in concluding there was

no unreasonable application of the Supreme Court’s decision in Lowenfield v.

Phelps, 484 U.S. 231 (1988).

         In his appeal, Amando stresses the court’s improper inquiry into the division

of the jury as to guilt and innocence. The Supreme Court strongly disapproved of

such an inquiry, but in the exercise of the Court’s supervisory powers and not as a

matter of constitutional doctrine, in Brasfield v. United States, 272 U.S. 448

(1926). As we observed in Oliver’s case, we would have seen the issue differently

had this situation occurred in a federal trial. See Clavano, 473 F. App’x at 748.




                                           2
Given the circumstances that existed in this case, we cannot conclude that the state

court was “unreasonable” in their application of Lowenfield.

      The trial court erred in admitting, against Amando, Oliver’s statements to a

police detective. The error was harmless, however, in view of the strength and

amount of evidence implicating Amando. Any sentencing error was also harmless.

      AFFIRMED.




                                         3
