                                                                            FILED
                           NOT FOR PUBLICATION                               AUG 20 2010

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




                            FOR THE NINTH CIRCUIT



DAVID SCOTT DETRICH,                             No. 08-99001

              Petitioner - Appellant,            D.C. No. 4:03-cv-00229-DCB

  v.
                                                 MEMORANDUM **
CHARLES L. RYAN,* OF ARIZONA
DEPARTMENT OF CORRECTIONS,

              Respondent - Appellee.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                      Argued and Submitted January 27, 2010
                               Pasadena, California

Before: PREGERSON, McKEOWN, and PAEZ, Circuit Judges.

       David Detrich—sentenced to death by an Arizona judge after a jury

convicted him of murder, kidnapping, and sexual abuse—petitioned for habeas



       *
              Charles L. Ryan is substituted for his predecessor Dora B. Schriro as
Director of the Arizona Department of Corrections. Fed. R. App. P. 43(c)(2).

       **
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
relief in federal district court. In a separate opinion filed today, we reversed the

district court’s denial of habeas relief on Detrich’s claim of ineffective assistance

of counsel during the penalty phase, and remanded for the district court to issue a

conditional writ of habeas corpus. Detrich v. Schriro, No. 08-99001. In his

petition, Detrich also alleged violations of his constitutional rights to a fair trial, an

impartial jury, and due process during the guilt phase of his trial, when the trial

court (1) excused jurors based on their opposition to the death penalty, and (2)

refused to allow voir dire on jurors’ racial biases. Applying the standards of the

Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No.

104-132, 110 Stat. 1214, the district court denied relief on the merits, and declined

to issue a certificate of appealability on these issues. Detrich presented the

uncertified issues in his opening brief, pursuant to Circuit Rule 22-1(e). We

granted a certificate of appealability on all of the uncertified issues and received

supplemental briefing from the parties. We affirm.

       Under the AEDPA, a federal court may grant a state prisoner’s habeas

petition with respect to a claim that was “adjudicated on the merits in State court

proceedings” only if the state court’s adjudication:

              (1) resulted in a decision that was contrary to, or involved
              an unreasonable application of, clearly established
              Federal law as determined by the Supreme Court of the


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             United States; or (2) resulted in a decision that was based
             on an unreasonable determination of the facts in light of
             the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). We agree with the district court’s determination that, under

the AEDPA, neither of Detrich’s guilt phase claims is meritorious.

      First, Detrich alleged that contrary to Witherspoon v. Illinois, 391 U.S. 510

(1968), Adams v. Texas, 448 U.S. 38 (1980), and Wainwright v. Witt, 469 U.S. 412

(1985), three jurors were incorrectly dismissed for their views on the death penalty.

State v. Detrich, 932 P.2d 1328, 1336 (Ariz. 1997). Although Detrich generally

objected to death qualification prior to the commencement of voir dire, the Arizona

Supreme Court found that Detrich had waived the issue, absent fundamental error,

because he failed to object to each juror’s dismissal for cause during the voir dire

process. Id. The Arizona Supreme Court applied the standard explained in

Wainwright, and found no fundamental error because each of the three excused

jurors “expressly confirmed that their views on the death penalty would interfere

with their deliberations in the guilt phase of this case.” Id.

      We agree with the district court’s determination that the claim was properly

exhausted and that the Arizona Supreme Court cited and applied the correct

standard from Wainwright. Detrich’s argument was squarely rejected by the

Supreme Court in Lockhart v. McCree, 476 U.S. 162, 183 (1986) (holding that


                                            3
Witherspoon and Adams are limited to capital sentencing and do not apply to the

“jury’s more traditional role of finding the facts and determining the guilt or

innocence of a criminal defendant”); see also Evans v. Lewis, 855 F.2d 631, 635

(9th Cir. 1988) (construing McCree as holding that Witherspoon and Adams apply

only in the sentencing context, rather than at the guilt phase). Therefore, we agree

that the state court’s decision was not “contrary to” nor an “unreasonable

application of” clearly established Supreme Court law.

      Second, Detrich alleges that contrary to Turner v. Murray, 476 U.S. 28

(1986) and Rosales-Lopez v. United States, 451 U.S. 182 (1981), the trial court

erred by refusing to question jurors on racial prejudice during voir dire. Detrich,

932 P.2d at 1335. On the basis of the motions and the jury voir dire transcript, the

Arizona Supreme Court found that Detrich waived this issue, and it did not

conduct a fundamental error review on the merits of the claim. Id. Although the

parties disagree about whether this issue was properly exhausted, we agree with the

district court that this claim may be dismissed on the merits. See Cassett v.

Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (“[A] federal court may deny an

unexhausted petition on the merits only when it is perfectly clear that the applicant

does not raise even a colorable federal claim.”). Under Ristaino v. Ross, 424 U.S.

589, 597 (1976), when issues of race are “inextricably bound up with the conduct


                                           4
of the trial” or the defense presented is “likely to intensify the prejudice that

individual members of the jury might harbor,” the trial court must allow voir dire

into racial bias if it is requested by the defendant. Id.

      Here, Detrich’s passing mention of race in his proposed jury questionnaire

and citation to Turner and Rosales-Lopez in his motion for individualized

sequestered voir dire and for the jury to fill out a written questionnaire, were

simply insufficient to alert the trial judge of the importance of asking questions

related to racial prejudice as part of the jury voir dire. The memorandum

supporting Detrich’s motion made no mention of the importance of race to

Detrich’s defense. And, as the district court pointed out, when the trial judge asked

if there were any other issues prior to passing the panel for cause, Detrich never

explained the importance of racial issues to the defense, asked the judge to

question the jury on racial bias, or placed his objections to the lack of racial bias

voir dire on the record. Therefore, because it is perfectly clear that Detrich’s claim

does not raise even a colorable federal claim, we affirm the district court’s

conclusion that Detrich failed to establish that the state court’s rejection of this

claim was “contrary to, or involved an unreasonable application of, clearly

established Federal law as determined by the Supreme Court.” 28 U.S.C. §

2254(d).


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AFFIRMED.




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