Danny Kim v. W. L. Montgomery

FILED
NOT FOR PUBLICATION MAY 26 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANNY KIM, No. 12-56894

Petitioner - Appellant, D.C. No. 2:11-cv-02784-MMM-
MRW
v.

W. L. MONTGOMERY, Acting Warden, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding

Submitted May 4, 2015**
Pasadena, California

Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.

Daniel Kim appeals the district court’s denial of his habeas corpus petition,

in which he claimed his right to a fair trial by an impartial jury was violated

because a juror intentionally concealed during voir dire her son’s conviction for a

*
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).
gang-related crime. We have jurisdiction under 28 U.S.C. § 2253. We review de

novo a district court’s denial of a habeas petition, Stanley v. Cullen, 633 F.3d 852,

859 (9th Cir. 2011), and we affirm.

The district court did not err in rejecting Kim’s actual bias claim. The

“remedy for allegations of juror partiality is a hearing where the defendant has the

opportunity to prove actual bias.” Smith v. Phillips, 455 U.S. 209, 215 (1982); see

Fields v. Brown, 503 F.3d 755, 773 (9th Cir. 2007) (en banc); see also 28 U.S.C.

§ 2254(d)(1). The trial court conducted such a hearing, and the state court’s

reliance on it was reasonable. See § 2254(d)(1). Moreover, the state court’s

decision was not an unreasonable determination of the facts. See § 2254(d)(2).

The decision was based on the general lack of similarity between Kim’s case and

Juror 1’s son’s case, other than the gang connection, and Kim’s failure to show that

Juror 1 lied to be empaneled as a juror or was biased against gangs. This was

reasonable given Juror 1’s testimony in the post-trial hearing.

The district court also did not err in rejecting Kim’s implied bias claim

because there is no clearly established Supreme Court precedent regarding implied

bias. See Harrington v. Richter, 562 U.S. 86, 100 (2011); Brewer v. Hall, 378 F.3d

952, 955 (9th Cir. 2004); see also Hedlund v. Ryan, 750 F.3d 793, 808 (9th Cir.

2
2014). The state court could not have unreasonably applied clearly established

Supreme Court precedent if no such precedent exists. See Brewer, 378 F.3d at 955.

For the first time on appeal, Kim argues that he is entitled to relief under

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984). Because

Kim failed to raise the issue before the district court, the argument is waived. See

United States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir. 2005) (“[I]ssues

not raised to the district court . . . are deemed waived.”).

AFFIRMED.