NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT FEB 01 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
VALERIE BEIDLER, No. 08-56467
Petitioner - Appellant, D.C. No. 3:05-cv-01384-DMS-
CAB
v.
GWENDOLYN MITCHELL, Warden; et MEMORANDUM*
al.,
Respondents - Appellees.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Argued and Submitted December 6, 2010
Pasadena, California
Before: B. FLETCHER, BERZON, and CALLAHAN, Circuit Judges.
Valerie Beidler was charged in state court with committing murder and
related crimes. During jury selection, the prosecutor excused the only two African-
American prospective jurors, and then excused the only African-American
prospective alternate juror. Defense counsel objected that the prospective alternate
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
was struck for racial reasons, but after conducting a Batson inquiry, the trial judge
determined that this was not so. Beidler was tried and convicted, and after several
state court appeals and petitions, she filed a habeas petition in the district court
pursuant to 28 U.S.C. § 2254. The district court denied the petition, and we
granted a Certificate of Appealability on the issue of “whether the district court
properly denied Beidler’s Batson claim, as to juror numbers 12 and 69, as waived.”
ER 1. We affirm the district court’s denial of habeas relief.1
The Supreme Court has explained:
In all cases in which a state prisoner has defaulted his federal claims
in state court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is barred unless
the prisoner can demonstrate cause for the default and actual prejudice
as a result of the alleged violation of federal law, or demonstrate that
failure to consider the claims will result in a fundamental miscarriage
of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Here, when rejecting Beidler’s arguments regarding the peremptory strikes
of Juror Nos. 12 and 69, the California Court of Appeals stated:
On this record, the question is not whether defense counsel timely
objected to the prosecutor’s challenges to juror nos. 12 and 69, it is
whether his comments can reasonably be construed as an objection at
all. We do not read counsel’s statements as an objection to the
1
Because the parties are familiar with the facts and procedural history, we
do not restate them here except as necessary to explain our decision.
2
prosecutor’s peremptory challenges to those jurors; indeed, counsel
admitted he had earlier failed to object to the challenges and he did
not make any corresponding attempt to cure his perceived failure.
There being no objection, the trial court was not required to assess
whether counsel stated a prima facie case of discrimination, or ask the
prosecutor to provide any justification for his challenges to those
jurors. By failing to raise an objection to those challenges before the
trial court, [Beidler and her co-defendant] waived the claim for
appeal. (People v. Anderson (2001) 25 Cal. 4th 543, 568, citing
People v. Bolin (1998) 18 Cal. 4th 297, 316, and People v. Montiel
(1993) 5 Cal. 4th 877, 909.)
ER 183 (emphasis in original).2
We read this statement as the invocation of an independent and adequate
California state procedural rule that objections not made in the trial court are
considered waived, and cannot be raised on appeal. See, e.g., Doers v. Golden
Gate Bridge, Hwy. & Transp. Dist., 588 P.2d 1261, 1263, n.1 (Cal. 1979) (noting
that “[a]n appellate court will ordinarily not consider procedural defects or
erroneous rulings, in connection with relief sought or defenses asserted, where an
2
The Court of Appeal also stated:
Anticipating a claim for ineffective assistance of counsel on this
ground, we observe based on the questionnaires submitted by a juror
nos. 12 and 69 the prosecutor had ample non-discriminatory reasons
for their excuse. Thus, were we to address the question we would
conclude Gerardo’s counsel was not ineffective for failing to make a
meritless objection to those challenges.
ER 183, n.7.
3
objection could have been but was not presented to the lower court by some
appropriate method . . . .”) (internal quotations omitted). Accordingly, to obtain
habeas relief in a federal court, Beidler must show “cause” to excuse her default in
state court, and actual “prejudice” as a result of the alleged violation of federal law,
or she must demonstrate that failure to consider the claims would result in a
“fundamental miscarriage of justice.” See Coleman, 501 U.S. at 750.
Beidler has not shown “cause,” “prejudice,” or a “fundamental miscarriage
of justice.” Beidler argues “cause” based on her trial counsel’s ineffectiveness in
failing to object to the prosecutor’s peremptory strikes of Juror Nos. 12 and 69.3
As she failed to present this “ineffective assistance of counsel” argument to the
district court, however, we will not consider it on appeal. See Belgarde v.
3
The California Court of Appeal’s conclusion that counsel failed to object
to the strikes of Juror Nos. 12 and 69 is supported by the record. Although counsel
referenced Juror Nos. 12 and 69 in his objection to the strike of Juror No. 7, at no
point did counsel actually extend his objection to apply to Juror Nos. 12 and 69.
The most that he said in this regard was “perhaps there should have been a Batson
objection” as to Juror Nos. 12 and 69. Even when the trial judge made clear that
counsel’s objection was being considered as an objection to the strike of Juror No.
7 only, and conducted a Batson inquiry limited to Juror No. 7, counsel did not
suggest that his objection applied to the strikes of Juror Nos. 12 and 69.
4
Montana, 123 F.3d 1210, 1216 (9th Cir. 1997).4 Beidler’s contention of
“prejudice” is belied by a record that suggests that the prosecutor had valid, non-
discriminatory reasons for striking Jurors Nos. 12 and 69.5 Beidler has also failed
to demonstrate a “fundamental miscarriage of justice” because she makes no claim
of actual innocence. See Schlup v. Delo, 513 U.S. 298, 321 (1995). Moreover,
there appears to have been more than sufficient evidence to convict Beidler. Under
these circumstances, there is no ground for relieving Beidler from the
consequences of failing to challenge in state court the prosecutor’s striking of Juror
Nos. 12 and 69.
For these reasons, the district court’s denial of Beidler’s petition is
AFFIRMED.
4
At the very least, Beidler had to have known of a possible claim for
ineffective assistance of trial counsel by the time of the Court of Appeal’s opinion,
which mentioned that claim. Nonetheless, she never raised such a claim in any of
her subsequent state court filings or in the district court, and does not allege that
there was anything preventing her from doing so.
5
Juror No. 12 commented that seeing graphic photos of the murder victim
would “terrif[y]” her, and that she did not know if she could “deal with” such
photos. She also expressed extreme ambivalence about whether she was willing to
serve as a juror on Beidler’s case. Juror No. 69 had a significant history of
unpleasant run-ins with the law and had received discipline from the military.
5