                             NOT FOR PUBLICATION                           FILED
                      UNITED STATES COURT OF APPEALS                        MAY 2 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


KYLE FRANK,                                        No.   16-16267

                Petitioner-Appellant,              D.C. No. 2:14-cv-01011-JKS

    v.
                                                   MEMORANDUM*
A.W. LIZARRAGA,

                Respondent-Appellee.


                     Appeal from the United States District Court
                        for the Eastern District of California
                     James K. Singleton, District Judge, Presiding

                         Argued and Submitted April 10, 2018
                              San Francisco, California

Before: THOMAS, Chief Judge, FERNANDEZ, Circuit Judge, and EZRA,**
District Judge.

         Petitioner-Appellant Frank appeals the district court’s order denying his

petition for a writ of habeas corpus. He argues that the state trial court violated the




*
      This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
     The Honorable David A. Ezra, United States District Judge for the District
of Hawaii, sitting by designation.
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Sixth Amendment by dismissing the lone holdout juror during deliberations. Juror

No. 9 was removed under California Penal Code § 1089 (“Section 1089”) after it

came to light that he failed to disclose during voir dire that he had been shot during

a home invasion robbery. We review under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), and we affirm.

      1. The California Court of Appeal’s decision was not contrary to, or an

unreasonable application of, clearly established law. 28 U.S.C. § 2254(d)(1). This

Court has repeatedly recognized the lack of clearly established law governing the

dismissal of jurors and previously concluded that the “Sixth Amendment does not

entitle a defendant to require retention of a biased juror.” Bell v. Uribe, 748 F.3d

857, 865, 869 (9th Cir. 2014). Frank fails to identify clearly established law to the

contrary. His reliance on McDonough Power Equipment, Inc. v. Greenwood, 464

U.S. 548 (1984), is misplaced. That case does not clearly establish that a trial court

violates the Sixth Amendment by dismissing during deliberations a holdout juror;

it was a civil case that did not purport to interpret or set forth any constitutional

basis. Id. at 553-54.

      2. Because there is not clearly established law in this area, this Court instead

analyzes challenges to the mid-deliberations dismissal of a juror under the

framework set forth in Perez v. Marshall, 119 F.3d 1422 (9th Cir. 1997). See, e.g.,
                                       3
Sanders v. Lamarque, 357 F.3d 943, 944 (9th Cir. 2004). In reviewing the

application of Section 1089, we have held that removal of a holdout juror does not

violate the Sixth Amendment where it was based on “good cause” and where there

was “no evidence to suggest that the trial court’s decision was motivated

by . . . [the juror’s] views on the merits”—i.e., because the juror was the lone

holdout. Perez, 119 F.3d at 1426.

      Under this framework, the California Court of Appeal’s conclusion that

there was a “demonstrable reality” that the holdout juror engaged in misconduct by

failing to disclose the shooting was not based on an unreasonable determination of

facts under 28 U.S.C. § 2254(d)(2). The state court found on direct appeal that the

juror questionnaire asked “directly” whether “[he], a close friend or relative [had]

ever been a victim of crime.” Instead of answering yes, Juror No. 9 answered no.

Although Juror No. 9 corrected his initial “no” to “yes” during voir dire, it was not

unreasonable for the state court to discount this correction because the answer

given still was not wholly truthful: Juror No. 9 did not disclose that he had been the

victim of a shooting crime, only that he had witnessed a burglary. Furthermore,

Juror No. 9 should have been on notice during voir dire that his being shot was

relevant because, as the state court found, multiple prospective jurors disclosed

experiences with assault and violence before he was questioned. Finally, the
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California Court of Appeal noted that there was juror testimony that when Juror

No. 9 was selected as a juror, he stated, “I made it.” Although the trial court

initially did not have “an issue” with this purported comment, it was not

unreasonable to conclude that this comment was relevant after additional

information was developed about the nature of Juror No. 9’s experience with gun

violence. Based on this record, we cannot say that it was objectively unreasonable

for the state court to conclude that there was a “demonstrable reality” of “good

cause” under Section 1089 to remove Juror No. 9.

      AFFIRMED.
