                                                                            FILED
                            NOT FOR PUBLICATION                             MAR 05 2010

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




                            FOR THE NINTH CIRCUIT



TRAVIS D. REAY,                                  No. 08-15973

              Petitioner - Appellant,            D.C. No. 2:02-cv-02067-GEB-
                                                 DAD
  v.

A. K. SCRIBNER, Warden; EDMUND G.                MEMORANDUM *
BROWN, Jr., Attorney General for the
State of California,

              Respondents - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                      Argued and Submitted February 8, 2010
                            San Francisco, California

Before: GOODWIN, BERZON and IKUTA, Circuit Judges.

       Travis Reay appeals the denial of his petition for writ of habeas corpus.

Reay was convicted by a jury in California of first-degree murder with an

enhancement for personal use of a weapon. Because his petition is subject to the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Anti-Terrorism and Effective Death Penalty Act of 1996, claims that a state court

has denied on the merits may not result in federal habeas relief unless the state

court’s ruling (1) was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States,” or (2) was “based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d). We

affirm.

      Denial of Reay’s motion to sever trial from that of his wife and co-

defendant, Nettie Reay, did not violate Reay’s due process rights. Denial of a

motion to sever trial violates due process “only if there is a serious risk that a joint

trial would compromise a specific right of one of the defendants, or prevent a jury

from making a reliable judgement about guilt or innocence.” Zafiro v. United

States, 506 U.S. 534, 539 (1993). Here, the domestic violence evidence was far

less strong and graphic than the evidence implicating Reay in the killing, and any

prejudice was lessened by the trial court’s instructions to the jury that it was to use

the domestic violence evidence for proper purposes. Additionally, there was other

properly admitted evidence of domestic violence, as well as evidence from other

eyewitnesses who essentially corroborated Nettie Reay’s testimony about Reay’s

involvement in the murder, so any prejudicial impact of the joint trial was further


                                            2
lessened. The California Court of Appeal’s conclusion that Nettie Reay’s duress

defense did not unfairly prejudice Reay was neither contrary to nor an

unreasonably application of federal law.

      Nor was Reay denied a fair trial because of a juror’s failure to disclose

childhood experiences with domestic violence and violent discipline. On receiving

allegations of the juror’s actual bias, the trial court properly held a hearing, see

Smith v. Phillips, 455 U.S. 209, 215 (1982), and concluded that the juror had

answered voir dire questions honestly and could act impartially. Given that honest

yet mistaken answers to voir dire questions rarely amount to constitutional

violations, and even dishonest answers may not be fatal if a juror can act

impartially, see McDonough Power Equip. v. Greenwood, 464 U.S. 548, 555-56

(1984), we cannot say that the California Court of Appeal erred in upholding that

decision. Nor is this an exceptional circumstance warranting a finding of implied

bias. See Dyer v. Calderon, 151 F.3d 970, 980-81 (9th Cir. 1998) (en banc); see

also McDonough, 464 U.S. at 556-57 (Blackmun, Stevens and O’Connor, JJ.,

concurring); id. at 558 (Brennan and Marshall, JJ., concurring in the judgment);

Phillips, 455 U.S. at 222 (O’Connor, J., concurring).

      Reay’s ineffective assistance of counsel, evidentiary, and prosecutorial

misconduct claims to do not rise to the level of constitutional violations. Reay has


                                            3
not provided grounds for federal habeas relief by claiming actual innocence based

on newly-discovered evidence, see Herrera v. Collins, 506 U.S. 390, 400 (1993),

or that the state court improperly denied his motion for state habeas counsel, see

Pennsylvania v. Finley, 481 U.S. 551, 557 (1987). Because none of Reay’s claims

merit habeas relief, a fortiori, the state court’s rejection of each of these claims was

neither contrary to nor an unreasonable application of clearly established Supreme

Court precedent.

      AFFIRMED.




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