                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 18 2013

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



                            FOR THE NINTH CIRCUIT


MARIO CATALAN,                                   No. 09-56726

              Petitioner - Appellant,            D.C. No. 2:08-cv-07831-GAF-
                                                 RNB
  v.

ANTHONY HEDGPETH, Warden,                        MEMORANDUM*

              Respondent - Appellee.


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

                              Submitted July 8, 2013**
                                Pasadena, California

Before: BENAVIDES,*** BYBEE, and NGUYEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
            The Honorable Fortunato P. Benavides, Senior Circuit Judge for the
U.S. Court of Appeals for the Fifth Circuit, sitting by designation.
      Mario Catalan appeals the district court’s denial of his petition for a writ of

habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and

we affirm.

      Catalan was tried jointly with Jose Ledesma in connection with two

murders. Both defendants were implicated in the first murder, but only Ledesma

was implicated in the second murder. After testifying at a pre-trial hearing, a

witness to the second murder was murdered. Ledesma had previously solicited the

witness’s murder. At trial, the prosecution was allowed to present evidence of

Ledesma’s solicitation of the witness’s murder, but was not allowed to present

evidence of the witness’s murder. The jury heard the witness’s testimony from the

pre-trial hearing and was told only that the witness was “unavailable.”

      During jury deliberations, Juror No. 12 informed the trial court that Juror

No. 3 had learned of the witness’s murder on the Internet and had told Juror No. 12

about it. Juror No. 3 had also told Juror No. 4 about the murder. Juror No. 3 was

dismissed for misconduct, and Juror No. 12 was dismissed because he did not think

he could be impartial after learning of the witness’s murder. Over defense

counsel’s objection, Juror No. 4, who averred that she could still be impartial, was

allowed to remain on the jury.




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      Catalan first claims that the California Court of Appeal’s decision that there

was no constitutional error in the trial court’s failure to presume that Juror No. 4

was prejudiced and dismiss her accordingly was contrary to, or an unreasonable

application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1).

There is no Supreme Court case, however, that clearly establishes any principle

dictating that the trial court was obliged to presume that Juror No. 4 was prejudiced

in these circumstances. The only Supreme Court cases that Catalan cites in support

of this argument are insufficiently on-point for us to conclude that the California

Court of Appeal was objectively unreasonable in not applying those cases in these

circumstances to find constitutional error based on the trial court’s failure to

presume prejudice. See Harrington v. Richter, 131 S. Ct. 770, 785–86 (2011).

This is particularly true given that the Supreme Court has emphasized the

circumstance-specific nature of presumed-prejudice inquiries. See, e.g., Marshall

v. United States, 360 U.S. 310, 312 (1959) (per curiam).

      Catalan also claims that the California Court of Appeal’s failure to find

constitutional error was based on an unreasonable determination of fact. See 28

U.S.C. § 2254(d)(2). Specifically, he claims that it was unreasonable for the

California Court of Appeal to conclude that Juror No. 4 remained unbiased after

learning of the witness’s murder. This assertion rests only on (1) the nature of the


                                           3
information learned, and (2) the fact that Juror No. 12 was admittedly biased after

learning this same information. But different people may react differently to the

same information, and it is not impossible to believe that a juror could set aside

knowledge of a witness’s murder and remain unbiased. At most, “[r]easonable

minds reviewing the record might disagree about” whether Juror No.4 could

remain unbiased upon learning of the witness’s murder, which is insufficient to

satisfy the demands of 28 U.S.C. § 2254(d)(2). Wood v. Allen, 558 U.S. 290, 301

(2010) (internal quotation marks omitted).

      Since Catalan has failed to demonstrate that the California Court of Appeal

ran afoul of 28 U.S.C. § 2254(d), the district court was correct in denying Catalan’s

habeas petition.

      AFFIRMED.




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