                                                                              FILED
                           NOT FOR PUBLICATION                                APR 24 2014

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



                            FOR THE NINTH CIRCUIT


THOMAS FRANKLIN WHEELOCK,                        No. 12-15690

              Petitioner - Appellant,            D.C. No. 4:05-cv-03878-PJH

  v.
                                                 MEMORANDUM*
SCOTT KERNAN,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                        Argued and Submitted April 7, 2014
                            San Francisco, California

Before: SCHROEDER, LIPEZ**, and CALLAHAN, Circuit Judges.

       This is a habeas appeal by a California prisoner, Thomas Wheelock, who

was convicted of first degree murder for shooting one of the drivers of an armored

car during a robbery. There are three certified issues.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Kermit Victor Lipez, Senior United States Circuit
Judge for the First Circuit, sitting by designation.
      The first relates to the dismissal of a juror during deliberations, after the

State learned that the juror was being prosecuted for fraud by the same district

attorney’s office, and defended by the same defender’s office, involved in this

case. There was no unfairness or one-sidedness in allowing the dismissal of the

juror, who was not in a position to function impartially. The state court’s holding

to that effect violated no clearly established principle of federal law. This situation

is unlike Georgia v. McCollum, 505 U.S. 42 (1992), relied upon by the Petitioner,

where one party was given an advantage in the selection process.

      The Petitioner also challenges the composition of the grand jury, claiming

underrepresentation of Asian-Americans as grand jurors, and discrimination

against Asian-Americans, Hispanics, and women in the selection of grand jury

forepersons. The state court of appeal carefully examined the historical record and

determined that there was no substantial underrepresentation, where most of the

absolute disparities were below 10%. This was in accord with many federal court

decisions, see, e.g., United States v. Rodriguez-Lara, 421 F.3d 932, 943–44 (9th

Cir. 2005), and hence violated no clearly established federal law.

      The California Court of Appeal reasonably applied Supreme Court precedent

when it held that the issuance of a California arrest warrant before commencement




                                           2
of extradition proceedings does not trigger the right to counsel. See United States

v. Gouveia, 467 U.S. 180, 190 (1984).

      AFFIRMED.




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