FILED
NOT FOR PUBLICATION SEP 10 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSE LUIS ORNELAS, No. 11-55166
Petitioner - Appellant, D.C. No. 2:07-cr-00930-DOC-JC
v.
GARY SANDOR, Warden, MEMORANDUM*
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted August 25, 2014**
Pasadena, California
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and RAKOFF,
Senior District Judge.***
*
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).
***
The Honorable Jed S. Rakoff, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
Petitioner Jose Luis Ornelas appeals from the district court’s judgment
denying his habeas petition under 28 U.S.C. § 2254. We have jurisdiction under 28
U.S.C. § 2253. We review a district court’s denial of a habeas petition de novo, see
Doody v. Ryan, 649 F.3d 986, 1001 (9th Cir. 2011) (en banc), and we affirm.
First, Petitioner alleges that two comments made by the jury’s foreperson
during deliberations constituted juror misconduct and therefore deprived him of his
constitutional rights to due process, cross examination, and a fair jury trial.
Because the California Supreme Court summarily denied the appeal, this Court
must “look through” that summary denial to the reasoning of the California Court
of Appeal. Cannedy v. Adams, 706 F.3d 1148, 1157–58 (9th Cir.), amended on
denial of reh’g en banc, 733 F.3d 794 (9th Cir. 2013). On direct appeal, the
California Court of Appeal concluded that neither comment constituted prejudicial
misconduct. We find that the Court of Appeal’s decision was not contrary to, or an
unreasonable application of, clearly established law, nor was it based on an
unreasonable determination of the facts in light of the evidence presented in state
court. See 28 U.S.C. § 2254(d). Under existing Supreme Court precedent,
fairminded jurists can differ on whether these comments constituted juror
misconduct or were prejudicial. See Harrington v. Richter, 131 S. Ct. 770, 786
(2011). Furthermore, ample evidence supports the Court of Appeal’s conclusions
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that the foreperson’s comments about the victim’s petechial injuries were
consistent with the trial testimony of the nurse who examined the victim, and that
the crucial dispute at trial was whether the sexual encounter was consensual, and
not whether Petitioner’s cocaine use enhanced his sexual ability.
Second, Petitioner asserts that his trial counsel rendered a constitutionally
ineffective performance by failing to locate an impeachment witness and introduce
impeaching photographs. In state habeas proceedings, the Los Angeles Superior
Court rendered the highest reasoned state court decision on these issues,
concluding that trial counsel was constitutionally adequate. These conclusions
were also not contrary to, or an unreasonable application of, clearly established
law, nor were they based on an unreasonable determination of the facts in light of
the evidence presented in state court. See 28 U.S.C. § 2254(d); see also Strickland
v. Washington, 466 U.S. 668, 687 (1984). A reasonable jurist could have
concluded that these decisions reflected reasonable tactical choices falling within
the “wide range of professionally competent assistance” that established Supreme
Court precedent requires. Strickland, 466 U.S. at 690.
AFFIRMED.
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