                                                                              FILED
                           NOT FOR PUBLICATION                                  SEP 10 2014

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



                           FOR THE NINTH CIRCUIT


JOSE LUIS ORNELAS,                               No. 11-55166

              Petitioner - Appellant,            D.C. No. 2:07-cr-00930-DOC-JC

  v.

GARY SANDOR, Warden,                             MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                    David O. Carter, District Judge, Presiding

                           Submitted August 25, 2014**
                              Pasadena, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and RAKOFF,
Senior District Judge.***




        *
             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 Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
      Petitioner Jose Luis Ornelas appeals from the district court’s judgment

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

U.S.C. § 2253. We review a district court’s denial of a habeas petition de novo, see

Doody v. Ryan, 649 F.3d 986, 1001 (9th Cir. 2011) (en banc), and we affirm.

      First, Petitioner alleges that two comments made by the jury’s foreperson

during deliberations constituted juror misconduct and therefore deprived him of his

constitutional rights to due process, cross examination, and a fair jury trial.

Because the California Supreme Court summarily denied the appeal, this Court

must “look through” that summary denial to the reasoning of the California Court

of Appeal. Cannedy v. Adams, 706 F.3d 1148, 1157–58 (9th Cir.), amended on

denial of reh’g en banc, 733 F.3d 794 (9th Cir. 2013). On direct appeal, the

California Court of Appeal concluded that neither comment constituted prejudicial

misconduct. We find that the Court of Appeal’s decision was not contrary to, or an

unreasonable application of, clearly established law, nor was it based on an

unreasonable determination of the facts in light of the evidence presented in state

court. See 28 U.S.C. § 2254(d). Under existing Supreme Court precedent,

fairminded jurists can differ on whether these comments constituted juror

misconduct or were prejudicial. See Harrington v. Richter, 131 S. Ct. 770, 786

(2011). Furthermore, ample evidence supports the Court of Appeal’s conclusions


                                           2
that the foreperson’s comments about the victim’s petechial injuries were

consistent with the trial testimony of the nurse who examined the victim, and that

the crucial dispute at trial was whether the sexual encounter was consensual, and

not whether Petitioner’s cocaine use enhanced his sexual ability.

      Second, Petitioner asserts that his trial counsel rendered a constitutionally

ineffective performance by failing to locate an impeachment witness and introduce

impeaching photographs. In state habeas proceedings, the Los Angeles Superior

Court rendered the highest reasoned state court decision on these issues,

concluding that trial counsel was constitutionally adequate. These conclusions

were also not contrary to, or an unreasonable application of, clearly established

law, nor were they based on an unreasonable determination of the facts in light of

the evidence presented in state court. See 28 U.S.C. § 2254(d); see also Strickland

v. Washington, 466 U.S. 668, 687 (1984). A reasonable jurist could have

concluded that these decisions reflected reasonable tactical choices falling within

the “wide range of professionally competent assistance” that established Supreme

Court precedent requires. Strickland, 466 U.S. at 690.

      AFFIRMED.




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