FILED
NOT FOR PUBLICATION MAY 15 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD SANCHEZ, Jr., No. 11-17636
Petitioner - Appellant, D.C. No. 2:01-cv-01694-LKK-
KJN
v.
RALPH M. DIAZ, Warden; MEMORANDUM*
YARBOROUGH; ATTORNEY
GENERAL FOR THE STATE OF
CALIFORNIA,
Respondents - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Submitted May 13, 2014**
San Francisco, California
Before: GRABER, W. FLETCHER, and PAEZ, 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).
California state prisoner Edward Sanchez, Jr., appeals from the district
court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
The issues certified for appeal were (1) whether the jury committed
misconduct during deliberations by speculating that Sanchez would be “out in five
years” if he were found not guilty by reason of insanity; (2) whether a juror
committed misconduct by preparing a homemade chart and bringing it into the jury
room for deliberations; (3) whether trial counsel acted ineffectively when he
waived Sanchez’s jury misconduct claims by failing to argue orally the claims at
the motion for a new trial; and (4) whether trial counsel was ineffective for failing
to object or request an admonishment when the prosecutor, in violation of an in
limine ruling, elicited testimony that the State’s experts were appointed by the
court.
We share the district court’s discomfort with this case. However, we cannot
say that the California state courts’ adjudication of Sanchez’s claims was
“objectively unreasonable” or contrary to clearly established Supreme Court
precedent. See Lockyer v. Andrade, 538 U.S. 63, 75 (2003).
Even if trial counsel’s failure to argue the jury misconduct claims fell below
an objective standard of reasonableness, see Strickland v. Washington, 466 U.S.
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668, 688 (1984), testimony adduced at trial reasonably supports a conclusion that
any jury misconduct did not affect the verdict. Similarly, even if trial counsel’s
decision to refrain from requesting an admonition was unreasonable, Sanchez has
not shown a reasonable probability that the verdict would have been different had
the jury been admonished. See id. at 694.
Sanchez does not challenge the California state courts’ conclusion that his
jury misconduct claims are procedurally defaulted. However, he argues that the
ineffective assistance of his trial counsel establishes “cause” to excuse the
procedural default. See Murray v. Carrier, 477 U.S. 478, 488 (1986). Because his
trial counsel’s assistance was not constitutionally ineffective, Sanchez cannot
establish cause to excuse his procedural default.
We have considered Sanchez’s assertion that failure to grant the requested
habeas relief will result in a fundamental miscarriage of justice, and are not
persuaded. See Wood v. Ryan, 693 F.3d 1104, 1117–18 (9th Cir 2012) (citing
Schlup v. Delo, 513 U.S. 298, 327 (1995)), cert. denied, 134 S.Ct. 239 (2013).
AFFIRMED.
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