                                                                           FILED
                            NOT FOR PUBLICATION                            OCT 17 2013

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



                            FOR THE NINTH CIRCUIT


DONALD R. MCNEELY,                               No. 11-56393

              Petitioner - Appellant,            D.C. No. 3:08-cv-02284-BTM-
                                                 CAB
  v.

MATTHEW L. CATE, Secretary CDCR,                 MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Southern District of California
                   Barry T. Moskowitz, District Judge, Presiding

                       Argued and Submitted October 7, 2013
                               Pasadena, California

Before: FERNANDEZ, PAEZ, and HURWITZ, Circuit Judges.

       California state prisoner Donald R. McNeely appeals the district court’s denial

of his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C.

§§ 1291 and 2253, and we affirm.

       The blog post by the jury foreman before the conclusion of deliberations was

improper. The state court did not unreasonably conclude, however, that the juror was

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
not biased, Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998), and that no

extraneous prejudicial information was thereby brought to the jury’s attention. The

state court found that the juror’s statements during voir dire were incomplete but

technically correct and also were not indicative of bias; this was not an unreasonable

determination of the facts in light of the evidence presented in the evidentiary hearings

in state court. 28 U.S.C. § 2254(d)(2). The district court properly held that McNeely

is not entitled to relief on this claim.

       McNeely’s request to represent himself was made just before the jury was

seated; the state court’s determination that the request was untimely was not an

unreasonable application of settled federal law. Id. § 2254(d)(1).

       The district court also did not err in rejecting McNeely’s claim that he was

improperly removed from the courtroom. McNeely disrupted the proceedings several

times; his ejection was warranted. Illinois v. Allen, 397 U.S. 337, 343 (1970).

       The district court also properly rejected McNeely’s sentencing challenges.

Because McNeely admitted to his prior convictions, the enhanced sentences were

proper under Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) and Cunningham v.

California, 549 U.S. 270, 288 (2007), and the consecutive sentences were proper

under Oregon v. Ice, 555 U.S. 160, 169-70 (2009).

       AFFIRMED.


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