                                                                              FILED
                           NOT FOR PUBLICATION                                MAR 12 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


MANUEL D. LOPES,                                 No. 12-17546

              Petitioner - Appellant,            D.C. No. 2:09-cv-01359-KJM-TJB

  v.
                                                 MEMORANDUM*
MARION SPEARMAN,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                            Submitted March 9, 2015**
                             San Francisco, California

Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.




        *
             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).
      State prisoner Manuel D. Lopes appeals from the district court’s denial of

his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. We

have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), and we affirm.

      Lopes contends that his absence at the reading of the verdict and the jury

polling violated his federal due process right to be present at all critical stages of

trial and resulted in prejudicial error. We review the denial of habeas relief de

novo. Murdaugh v. Ryan, 724 F.3d 1104, 1113 (9th Cir. 2013).

      We will deny Lopes’s habeas petition unless the decision of the California

Court of Appeal “(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 proceeding.” 28 U.S.C.

§ 2254(d).

      Assuming a constitutional right to be present existed, the California Court of

Appeal found that Lopes waived the right by his voluntary absence at that stage of

his trial. It is clearly established federal law that a defendant may waive his

constitutional right to be present by his voluntary absence. Diaz v. United States,

223 U.S. 442, 455 (1912). Because the voluntary waiver exception applies, we do

not reach the issue of prejudicial error, and we hold that the decision of the

                                           2
California Court of Appeal was not based on an unreasonable determination of the

facts presented in state court.

       Lopes contends not that his absence was involuntary, but instead that he

expected the trial court to wait for him. Lopes had been advised to remain within

thirty minutes of the court until notified, and when he did not return for over an

hour, the trial court proceeded without him. The trial court had no indication of

whether he would appear other than his attorney’s statement that he “may” return.

Accordingly, the California Court of Appeal found that (1) his absence was

voluntary when he failed to return within the time prescribed to him by his attorney

and (2) the trial court exercised reasonable diligence, through his attorney, to locate

him. These findings are not unreasonable based on the record, as we properly

consider the California Court of Appeal to have considered all of the evidence

before it.

       Lopes failed to show that his absence was involuntary, and the California

Court of Appeal did not make an unreasonable finding with regard to voluntary

waiver. Under 28 U.S.C. § 2254(d)(2) we deny the petition. Even if error

occurred, the voluntary waiver exception applies. We do not reach Lopes’s claim

that the alleged error was prejudicial.

       AFFIRMED.

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