                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUL 27 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GEORGE BERARDI,                                  No.   15-55881

              Petitioner-Appellant,              D.C. No.
                                                 3:13-cv-01598-BTM-BLM
 v.

DANIEL PARAMO, Warden,                           MEMORANDUM*

              Respondent-Appellee.


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

                        Argued and Submitted July 11, 2017
                               Pasadena, California

Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.

      George Berardi (“Berardi”) appeals the district court’s denial of his federal

habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we

affirm. Our review is governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1.    The California Court of Appeal reasonably determined that Juror Nine was

not biased. A defendant has the right to “a jury capable and willing to decide the

case solely on the evidence.” Smith v. Phillips, 455 U.S. 209, 217 (1982). Juror

Nine’s comments to his fellow jurors during deliberations did not show that he was

racially biased and therefore unable to decide the case on the evidence presented.

Berardi focuses on Juror Nine’s statement to other jurors that, if the races of

Berardi and the victim were switched (Berardi is white and the victim was African-

American), they would have convicted Berardi immediately. However, the

California Court of Appeal reasonably interpreted that comment as reflecting not

racial bias but rather Juror Nine’s frustration that deliberations continued for

several days despite what he believed was strong evidence in favor of conviction.

Indeed, Juror Nine’s comment was unlike those in other cases that strongly

indicated racial bias. See, e.g., Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 862,

869–70 (2017).

      Further, the California Court of Appeal reasonably determined that Berardi

was given sufficient opportunity to prove Juror Nine’s bias. The United States

Supreme Court has established that “the remedy for allegations of juror partiality is

a hearing in which the defendant has the opportunity to prove actual bias.” Smith,

455 U.S. at 215. The California Superior Court examined six of the twelve jurors,


                                           2
with counsel present, using questions submitted by the parties. That provided an

adequate opportunity for Berardi to prove bias. See Hedlund v. Ryan, 854 F.3d

557, 574 (9th Cir. 2017) (finding a hearing on juror impartiality sufficient where

“the fact-finding process [was] objective and reasonably explore[d] the issues

presented” (quoting Dyer v. Calderon, 151 F.3d 970, 975 (9th Cir. 1988))).

2.    We grant Berardi’s motion to expand the Certificate of Appealability

(“COA”) to include a second issue: whether his state-court appellate counsel was

ineffective. See Ninth Cir. R. 22-1(e) (when a petitioner briefs an uncertified issue,

we construe the briefing as a motion to expand the COA). The district court found

that this claim was untimely and that it fails on the merits. Because “jurists of

reason” might find those conclusions “debatable,” we grant the motion. See Slack

v. McDaniel, 529 U.S. 473, 484 (2000).

      However, we affirm the district court’s denial of relief, finding that even if

the claim was timely, it fails on the merits. The Supreme Court of California did

not provide any reasoning when it rejected Berardi’s ineffective-assistance claim,

but a review of the record shows that its decision was reasonable. See Pirtle v.

Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (when a state court does not provide

a reasoned decision, we must “independently review the record to determine

whether the state court clearly erred in its application of Supreme Court law” ).


                                           3
      Under Strickland v. Washington, 466 U.S. 668 (1984), counsel is ineffective

when his performance fell below an objective standard of reasonableness and his

deficient performance prejudiced the defendant. Id. at 687–88; see also Smith v.

Robbins, 528 U.S. 259, 285 (2000) (applying the Strickland standard to appellate

counsel). To determine whether counsel was ineffective for failing to raise a claim

on appeal, we must look to the merits of the claim. See Woods v. Etherton, 136 S.

Ct. 1149, 1152–53 (2016); Moormann v. Ryan, 628 F.3d 1102, 1106–07 (9th Cir.

2010).

      The Supreme Court of California could have reasonably determined that

Berardi did not have a viable claim on appeal that his right to testify was violated.

After a post-trial evidentiary hearing, the California Superior Court found that

though Berardi may have wanted to testify, he ultimately acquiesced in his

attorney’s advice not to do so. The trial court concluded that Berardi did not make

an unequivocal demand to testify, either to his attorney or to the court. We

presume that those findings of fact are correct. See 28 U.S.C. § 2254(e)(1);

Miller-El v. Cockrell, 537 U.S. 322, 341–42 (2003). Under both Ninth Circuit and

California precedent, those facts were insufficient to support a claim that Berardi’s

right to testify was violated. See United States v. Edwards, 897 F.2d 445, 446–47

(9th Cir. 1990) (holding that there was no violation where the defendant asked his


                                           4
attorney to testify but his attorney misunderstood the request and did not call him

to the stand); People v. Blye, 233 Cal. App. 2d 143, 149 (1965) (holding that a

defendant’s right to testify is violated only if the record “show[s] affirmatively that

the defendant effectively demanded the right to take the stand against the advice of

his attorney” but was not allowed to do so).

      To the extent that Berardi argues that his appellate counsel should have

raised a slightly different claim—an ineffective-assistance claim based on trial

counsel’s failure to call Berardi to the stand—we find that this claim was also

likely to fail. See United States v. Nohara, 3 F.3d 1239, 1243–44 (9th Cir. 1993)

(holding that trial counsel was not ineffective even though he waived the

defendant’s right to testify without informing him).

      AFFIRMED.




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