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NOT FOR PUBLICATION MAR 12 2015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
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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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