                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 21 2011

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




                            FOR THE NINTH CIRCUIT



MICHAEL G. ARNOLD,                               No. 10-16956

              Petitioner - Appellant,            D.C. No. 2:06-cv-01539-AWT

  v.
                                                 MEMORANDUM *
ANTHONY KANE,

              Respondent - Appellee.



                  Appeal from the United States District Court
                       for the Eastern District of California
              A. Wallace TASHIMA, Senior Circuit Judge, Presiding

                          Submitted December 6, 2011 **
                            San Francisco, California

Before: O’SCANNLAIN and BERZON, Circuit Judges, and LASNIK, 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 Robert S. Lasnik, District Judge for the U.S. District
Court for Western Washington, sitting by designation.
       Petitioner-Appellant Michael G. Arnold appeals the denial of his federal

habeas petition. He argues that adverse pretrial publicity deprived him of a fair

trial and that the state trial court should therefore have granted a change of venue.

We affirm.

       Because Arnold’s habeas petition was filed after April 24, 1996, the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies. Under

AEDPA, Arnold must demonstrate that the state court’s merits decision “was

contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States” or “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).

       To establish a constitutional violation on grounds of adverse pretrial

publicity, a criminal defendant must demonstrate either actual or presumed

prejudice. Randolph v. California, 380 F.3d 1133, 1142 (9th Cir. 2004). Arnold

fails to establish any error, let alone one rising to the level necessary for relief

under § 2254(d). The state court reasonably concluded that the publicity

surrounding his trial was not extreme enough to compel a finding of presumptive

prejudice. See Murphy v. Florida, 421 U.S. 794, 796-99 (1975). Nor does the for-




                                            2
cause dismissal of two prospective jurors establish the existence of actual

prejudice. See id. at 803.

      AFFIRMED.




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