                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 23 2013

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



GREGG L. BARNES,                                 No. 10-56439

              Petitioner - Appellant,            D.C. No. 5:08-cv-00589-AG-RC

  v.
                                                 MEMORANDUM *
V. M. ALMAGER, Warden,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    Andrew J. Guilford, District Judge, Presiding

                       Argued and Submitted March 7, 2013
                              Pasadena, California

Before: THOMAS and HURWITZ, Circuit Judges, and BEISTLINE, Chief
District Judge.***

       Gregg Barnes appeals the district court’s denial of habeas corpus relief on

four federal constitutional claims challenging his California conviction for




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        ***
             The Honorable Ralph R. Beistline, Chief District Judge for the U.S.
District Court for the District of Alaska, sitting by designation.
manufacturing methamphetamine and possessing ephedrine or pseudoephedrine

with intent to manufacture methamphetamine. We have jurisdiction under 28

U.S.C. §§ 1291, 2253. Because the California courts did not issue a reasoned

decision on Barnes’ constitutional claims, we must “perform an ‘independent

review of the record’ to ascertain whether the state court decision was objectively

unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003) (quoting

Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)). We affirm the judgment of

the district court.

                                          I

       The California Supreme Court did not unreasonably apply Batson v.

Kentucky, 476 U.S. 79 (1986), in rejecting Barnes’ claim that the prosecutor’s use

of peremptory strikes violated the Equal Protection Clause. 28 U.S.C.

§ 2254(d)(2).1 The record fairly supports the conclusion that Barnes failed to



       1
         Barnes did not waive his Batson claim by failing to timely object at trial.
The record reflects that defense counsel raised the issue before the jury was sworn
and the trial judge understood defense counsel’s objection to be a Batson motion.
This is adequate to preserve the claim. See United States v. Contreras-Contreras,
83 F.3d 1103, 1104 (9th Cir. 1996) (citations omitted) (holding that “a Batson
objection must be made as soon as possible, and preferably before the jury is
sworn”). We also agree with the parties that Barnes exhausted this claim by “fairly
presenting” it in his final habeas petition to the California Supreme Court. Scott v.
Schriro, 567 F.3d 573, 582 (9th Cir. 2009) (citing Insyxiengmay v. Morgan, 403
F.3d 657, 668 (9th Cir. 2005)).

                                          2
establish a prima facie case of racial discrimination. Johnson v. Finn, 665 F.3d

1063, 1071 (9th Cir. 2011). As such, the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”) bars relief. See Cullen v. Pinholster, 131 S. Ct.

1388, 1398 (2011) (holding that review under 28 U.S.C. § 2254(d) “is limited to

the record that was before the state court that adjudicated the claim on the merits”).

      Our decision in Boyd v. Newland, 467 F.3d 1139 (9th Cir. 2004), does not

dictate a contrary result. Unlike in Boyd, there is no evidence that the state courts

denied Barnes’ request for a complete transcript of voir dire, cf. id. at 1142 (noting

that California Court of Appeal denied Boyd’s three explicit requests to

supplement the record with the entire voir dire transcript), and Barnes cites no

authority—let alone a holding of the United States Supreme Court—for the

proposition that a state court entertaining a constitutional claim raised for the first

time in a habeas petition must order the preparation of a complete voir dire

transcript sua sponte. See Stanley v. Schriro, 598 F.3d 612, 617 (9th Cir. 2010)

(affirming that, under AEDPA, “clearly established federal law” refers to the

holdings of the United States Supreme Court).

                                            II

      The California Supreme Court reasonably rejected Barnes’ claim that the

prosecutor violated his right to due process by vouching for the credibility of


                                            3
government witnesses at trial. We agree with Barnes that the prosecutor

impermissibly vouched for the credibility of several police witnesses, as his

assurances that they testified “honestly” placed “the imprimatur of the

Government” on their veracity in a manner that risked “induc[ing] the jury to trust

the Government’s judgment rather than its own view of the evidence.” United

States v. Young, 470 U.S. 1, 18-19 (1985) (citation omitted). However,

prosecutorial vouching rises to the level of constitutional violation only if it “‘so

infect[s] the trial with unfairness as to make the resulting conviction a denial of due

process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). Prosecutorial vouching does not

violate due process where the “remarks were ‘invited’ [by defense counsel’s attack

on the credibility of government witnesses], and did no more than respond

substantially in order to ‘right the scale’. . . .”). Young, 470 U.S. at 12-13 (footnote

omitted).

      The record reflects that the prosecutor’s statements directly responded to

defense counsel’s attacks, “rendering it unlikely that the jury was led astray.” Id.

at 12 (footnote omitted). Thus, we cannot say that it was objectively unreasonable

for the state court to find no due process violation.

                                           III


                                           4
      The state court also reasonably rejected Barnes’ claim that the trial judge

violated his right to due process by coercing a verdict. As the district court

correctly found, there is no evidence of coercion in the record, let alone proof that

the trial judge’s conduct “‘had a substantial and injurious effect or influence in

determining the jury’s verdict.’” Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir.

1999) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

      Neither the trial judge’s instruction that the jury foreperson return to

deliberations after her colloquy with the judge, nor his subsequent instruction that

the jury reconvene at a specified time the following morning, constituted an

instruction to reach a verdict despite an impasse in deliberations. Even if these

admonishments could be read as instructions to continue deliberating, that would

not establish a due process violation. Lowenfield v. Phelps, 484 U.S. 231, 237

(1988); Parker v. Small, 665 F.3d 1143, 1147 (9th Cir. 2011) (per curiam).

      Similarly, Barnes has not shown that the trial judge’s ex parte contact with a

juror violated his right to due process. To establish a due process violation, Barnes

must demonstrate both a constitutional violation and prejudice. Smith v. Curry,

580 F.3d 1071, 1085 (9th Cir. 2009) (citing Rushen v. Spain, 464 U.S. 114, 117

(1983) (per curiam)). Even assuming that the trial judge’s conduct was




                                           5
unconstitutional, the juror was promptly replaced and there is no evidence of

prejudice.

      Finally, Barnes fails to identify Supreme Court authority to support his

suggestion that these incidents, while not individually coercive, could cumulatively

produce a due process violation.

                                          IV

      The record supports a plausible claim that Barnes’ Sixth Amendment right to

counsel was violated when his attorney refused to move for a new trial based on

his own ineffectiveness and the trial court failed to meaningfully investigate

defense counsel’s potential conflict of interest. However, we are constrained by

AEDPA to affirm the denial of relief, as there is no clearly established federal law

imposing a duty of inquiry on the trial court under the circumstances of this case.

      In Mickens v. Taylor, the Supreme Court clarified that, to date, its Sixth

Amendment jurisprudence regarding attorney conflicts-of-interest has been limited

to the special circumstances raised by defense counsel’s representation of multiple

co-defendants. 535 U.S. 162, 175-76 (2002). Cuyler v. Sullivan, 446 U.S. 335

(1980), which established a trial court’s duty to investigate conflicts of which it is

or should be aware, and articulated an exception from the requirement that a

defendant show prejudice to obtain relief from a Sixth Amendment violation, does


                                           6
not clearly apply outside the multiple-representation context. See Mickens, 535

U.S. at 176 (stating that Sullivan’s application outside the multiple-representation

context is, “as far as the jurisprudence of [the Supreme Court is] concerned, an

open question”); see also Earp v. Ornoski, 431 F.3d 1158, 1184 (9th Cir. 2005)

(acknowledging Mickens’ limitation of Sullivan). Thus, we cannot say that the

California Supreme Court’s denial of Barnes’ Sixth Amendment claim was

contrary to, or an unreasonable application of, clearly established federal law. 28

U.S.C. § 2254(d); Campbell v. Rice, 408 F.3d 1166, 1170 (9th Cir. 2005) (en

banc).

         AFFIRMED.




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