FILED
NOT FOR PUBLICATION APR 24 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS FRANKLIN WHEELOCK, No. 12-15690
Petitioner - Appellant, D.C. No. 4:05-cv-03878-PJH
v.
MEMORANDUM*
SCOTT KERNAN,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Argued and Submitted April 7, 2014
San Francisco, California
Before: SCHROEDER, LIPEZ**, and CALLAHAN, Circuit Judges.
This is a habeas appeal by a California prisoner, Thomas Wheelock, who
was convicted of first degree murder for shooting one of the drivers of an armored
car during a robbery. There are three certified issues.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kermit Victor Lipez, Senior United States Circuit
Judge for the First Circuit, sitting by designation.
The first relates to the dismissal of a juror during deliberations, after the
State learned that the juror was being prosecuted for fraud by the same district
attorney’s office, and defended by the same defender’s office, involved in this
case. There was no unfairness or one-sidedness in allowing the dismissal of the
juror, who was not in a position to function impartially. The state court’s holding
to that effect violated no clearly established principle of federal law. This situation
is unlike Georgia v. McCollum, 505 U.S. 42 (1992), relied upon by the Petitioner,
where one party was given an advantage in the selection process.
The Petitioner also challenges the composition of the grand jury, claiming
underrepresentation of Asian-Americans as grand jurors, and discrimination
against Asian-Americans, Hispanics, and women in the selection of grand jury
forepersons. The state court of appeal carefully examined the historical record and
determined that there was no substantial underrepresentation, where most of the
absolute disparities were below 10%. This was in accord with many federal court
decisions, see, e.g., United States v. Rodriguez-Lara, 421 F.3d 932, 943–44 (9th
Cir. 2005), and hence violated no clearly established federal law.
The California Court of Appeal reasonably applied Supreme Court precedent
when it held that the issuance of a California arrest warrant before commencement
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of extradition proceedings does not trigger the right to counsel. See United States
v. Gouveia, 467 U.S. 180, 190 (1984).
AFFIRMED.
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