                                                                           FILED
                            NOT FOR PUBLICATION                             JAN 10 2013

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




                           FOR THE NINTH CIRCUIT



JERMAINE AARON MOORE,                            No. 10-55030

               Petitioner - Appellant,           D.C. No. 2:07-cv-02277-CAS-
                                                 FMO
  v.

KELLY HARRINGTON, Warden,                        MEMORANDUM *

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                    Christina A. Snyder, District Judge, Presiding

                             Submitted January 8, 2013 **
                                Pasadena, California

Before:        KOZINSKI, Chief Judge, McKEOWN and M. SMITH, Circuit
               Judges.

       The California Court of Appeal’s ruling wasn’t “contrary to,” and didn’t

involve “an unreasonable application of, clearly established Federal law.” 28




          *
             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).
                                                                                  page 2

U.S.C. § 2254(d)(1); see also Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

The state court considered the totality of the circumstances, and it wasn’t

unreasonable in concluding that the trial judge’s comments weren’t coercive. See

Lowenfield v. Phelps, 484 U.S. 231, 237–41 (1988); see also Wong v. Smith, 131

S. Ct. 10, 11–12 (2010) (Alito, J., dissenting from denial of certiorari). The judge

made his comments only after the jury, which had spent relatively little time

deliberating, indicated it was having trouble reaching a verdict. He made it clear

that it was acceptable for the jury not to reach a verdict, and as in Lowenfield, 484

U.S. at 240 & n.4, the defense attorney didn’t object to the judge’s remarks. In

fact, the jury in this case spent slightly more time deliberating after the judge’s

comments than did the Lowenfield jury. Id. at 235.


      AFFIRMED.
