                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 01 2016
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


STEVE ROMERO,                                    No. 13-56436

              Petitioner - Appellant,            D.C. No. 5:10-cv-00462-SVW-OP

 v.
                                                 MEMORANDUM*
A.M. GONZALES,

              Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                     Argued and Submitted October 20, 2015
                              Pasadena, California

Before: RAWLINSON and NGUYEN, Circuit Judges and BOULWARE,** District
Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


        **
             The Honorable Richard F. Boulware, District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.
      Petitioner Steve Romero appeals the dismissal of his petition for writ of

habeas corpus. This court has jurisdiction under 28 U.S.C. §§ 1291 and 2253.

      The court finds that the state court’s summary dismissal of Romero’s habeas

petition with citations to In re Swain, 34 Cal. 2d 300, 304 (1949) and People v.

Duvall, 9 Cal. 4th 464, 474 (1995) does not clearly reflect an adjudication on the

merits. See Cross v. Sisto, 676 F.3d 1172, 1177 (9th Cir. 2012). Therefore, we

review the petition de novo and affirm in part and remand in part. See Cone v. Bell,

556 U.S. 449, 472 (2009).

      1. The district court properly denied Romero’s claim that the trial court

erred in failing to dismiss a biased juror sua sponte. In California, a trial court

judge does not have an independent, affirmative duty to excuse prospective jurors

for cause. People v. Bolin, 18 Cal. 4th 297, 315-16 (1998). Further, the Supreme

Court has held that deference is owed when reviewing a trial judge’s determination

of juror bias. See Uttecht v. Brown, 551 U.S. 1, 9 (2007). In this case, the trial

record is clear that while the trial judge acknowledged the juror’s statements

indicating bias, the judge declined to dismiss the juror in part because of Romero’s

counsel’s expressed tactical decision to retain the juror.

      2. The court remands the district court’s denial of Romero’s ineffective

assistance of counsel claim against his trial counsel as the record is incomplete on


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this issue. A trial counsel’s failure to strike a prospective juror who repeatedly

expresses his inability to serve as an impartial juror during voir dire could

represent deficient performance and prejudice under Strickland. Strickland v.

Washington, 466 U.S. 668, 687 (1984); see Darbin v. Nourse, 664 F.2d 1109, 1113

(9th Cir. 1981). The court therefore remands for the district court to determine

whether evidentiary proceedings are warranted to address Romero’s claim of

ineffective assistance of trial counsel. See Schriro v. Landrigan, 550 U.S. 465, 468,

473 (2007).

      3. The district court properly denied Romero’s ineffective assistance of

counsel claim against his appellate counsel for failure to bring an ineffective

assistance of counsel claim on direct appeal. See Pollard v. White, 119 F.3d 1430,

1435-37 (9th Cir. 1997) (interpreting Strickland). Romero’s appellate counsel did

not have sufficient evidence in the record to support a claim that Romero’s trial

counsel was ineffective for failure to seek the exclusion of a potentially biased

juror. See United States v. Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011). Trial

counsel had expressed a tactical reason for retaining the juror and the trial record

provided no further information regarding this decision. Romero therefore fails to

demonstrate appellate counsel’s performance was deficient, and that but for

appellate counsel’s failure to raise the omitted claim, there is a reasonable


                                           3
probability that the petitioner would have prevailed on appeal. Strickland, 466 U.S.

at 687.

      Each party shall bear its own costs.

      AFFIRMED in part and REMANDED in part.




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