Crater v. Galaza

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

ANDREW CORTEZ CRATER,  No. 05-17027
Petitioner-Appellant, D.C. No.
v.  CV-01-01893-MCE/
GEORGE M. GALAZA, GGH
Respondent-Appellee.
 OPINION

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, District Judge, Presiding

Argued and Submitted
October 17, 2006—San Francisco, California

Filed July 9, 2007

Before: Melvin Brunetti, Diarmuid F. O’Scannlain, and
Stephen S. Trott, Circuit Judges.

Opinion by Judge O’Scannlain

8135
8138 CRATER v. GALAZA

COUNSEL

Victor S. Haltom, Sacramento, California, Attorney at Law,
argued the cause for petitioner-appellant Andrew Cortez Cra-
ter and filed briefs.

Brian R. Means, Sacramento, California, Supervising Deputy
Attorney General of the State of California, argued the cause
for respondent-appellee George M. Galaza; Bill Lockyer,
Attorney General of the State of California, Robert R. Ander-
son, Chief Assistant Attorney General of the State of Califor-
nia, and Mary Jo Graves, Senior Assistant Attorney General
of the State of California, were on the brief.

OPINION

O’SCANNLAIN, Circuit Judge:

We are asked, once again, whether the Anti-terrorism and
Effective Death Penalty Act is unconstitutional, this time by
another habeas corpus petitioner convicted of murder in a
California state court.

I

On June 8, 1995, Andrew Cortez Crater and Thomas Crater
Robinson went on an armed crime spree in Sacramento, Cali-
 CRATER v. GALAZA 8139
fornia. In the course of a few hours, the two men robbed a
college student, a man and his sister-in-law, and a group out-
side a café. During the third robbery, Robinson fatally shot
James Pantages. The Sacramento community expressed sor-
row and dismay. James Pantages had been a beloved local
musician. Numerous news reports were written on the crime.

Crater and Robinson were tried for robbery, attempted rob-
bery, and murder. The charges included a special circum-
stance allegation for murder committed during a robbery. The
prosecutor pursued the death penalty only for Robinson. Cra-
ter sought a change of venue and severance of his trial from
that of Robinson, and the judge granted the latter.

Tried first, Robinson was convicted on all counts. The jury
hung with regard to the death penalty, and the prosecutor did
not pursue it further. Before Crater’s trial began, the prosecu-
tion proposed the following bargain: If Crater would plead
guilty, the District Attorney’s office would drop the special
circumstance allegation. After learning that Crater was reluc-
tant to accept this deal, the judge gathered the attorneys and
the defendant in camera and explained that he considered the
plea proposal to be a “major concession” by the prosecution.
Despite the judge’s encouragement to accept the agreement,
however, Crater did not plead guilty. Instead, he moved to
“peremptorily excuse” the judge under Cal. Civ. Proc. Code
§ 170.6, based on the judge’s in camera advice. The judge
denied Crater’s motion, explaining that “in terms of my abil-
ity to try the case, regardless of whether you can peremptorily
excuse me, if I felt that I could not give your client a fair trial,
I would excuse myself.”

The day before his trial began, Crater moved for a continu-
ance and a change of venue. The judge declined both motions.
Seventeen days later, the jury found Crater guilty on all
counts and found the special circumstance to be true. Accord-
ingly, the judge sentenced Crater to life in prison without the
possibility of parole.
8140 CRATER v. GALAZA
On direct appeal, Crater claimed that the denial of his
motions for recusal and change of venue violated due process
and that the jury instructions regarding the special circum-
stance prescribed too low a burden of proof. The California
Court of Appeal consolidated his appeal with Robinson’s and
rejected it in an unpublished decision. The California
Supreme Court denied his petition for review without com-
ment.

Crater then turned to the federal courts. He reiterated his
claims regarding recusal and venue in a habeas petition to the
Eastern District of California. A magistrate judge recom-
mended granting the petition based upon evidence of judicial
bias, but the district judge disagreed, finding no evidence that
the state judge harbored “prejudicial bias and should have
recused himself.” Applying the standard of review set forth in
the Anti-terrorism and Effective Death Penalty Act
(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214, the district
court concluded that “the state court’s application of Supreme
Court precedent was objectively reasonable” and denied Cra-
ter’s habeas petition on September 30, 2005.

Crater timely appealed.

II

A

Crater first raises a frontal attack on the constitutionality of
AEDPA. He claims that 28 U.S.C. § 2254(d)(1), a provision
of AEDPA limiting the grounds for federal habeas relief for
prisoners convicted in state court, violates the Suspension
Clause and interferes with the independence of federal courts
under Article III. In his intertwined constitutional arguments,
Crater invokes the writ of habeas corpus both as an individual
right1 and as a power of the federal courts.
1
We do not attempt to answer the question of whether the Suspension
Clause creates an individual right or sets a congressional limit, a point of
 CRATER v. GALAZA 8141
1

[1] Our analysis begins with the statutory text. We agree
with Crater that § 2254(d) as a whole markedly reduces the
availability of federal habeas relief for prisoners contesting
their detention after state adjudication on the merits. Before
AEDPA was enacted, federal courts could grant relief if the
state adjudication did not meet the standards of federal law.
See Williams v. Taylor, 529 U.S. 362, 400 (2000) (O’Connor,
J., concurring) (noting that under prior law “a federal court
should grant a state prisoner’s petition for habeas relief if that
court were to conclude in its independent judgment that the
relevant state court had erred on a question of constitutional
law or on a mixed constitutional question”). After AEDPA,
however, courts may not grant relief unless a state adjudica-
tion either

(1) resulted in a decision that 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) resulted in a decision that 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).2

recent disagreement in the D.C. Circuit. See Boumediene v. Bush, 476
F.3d 981, 993 (D.C. Cir. 2007) (“[T]he dissent offers the distinction that
the Suspension Clause is a limitation on congressional power rather than
a constitutional right. But this is no distinction at all.”). Because Crater is
an American citizen, the Suspension Clause applies under either view.
2
The two clauses of § 2254(d)(1) impose distinct limitations:
Under the “contrary to” clause, a federal habeas court may grant
the writ if the state court arrives at a conclusion opposite to that
reached by this Court on a question of law or if the state court
8142 CRATER v. GALAZA
[2] The Supreme Court has underscored the magnitude by
which § 2254(d)(1) has altered prior standards and procedures
for granting habeas relief: “the only question that matters
[now] under § 2254(d)(1) [is] whether a state court decision
is contrary to, or involved an unreasonable application of,
clearly established federal law.” Lockyer v. Andrade, 538 U.S.
63, 71 (2002); see also Early v. Packer, 537 U.S. 3, 11 (2002)
(noting that a “merely erroneous” state decision does not war-
rant relief unless it is also “ ‘an unreasonable application’ of
clearly established federal law” (emphasis in original)).

The Court has recognized that § 2254(d)(1) “places a new
constraint on the power of a federal habeas court” and “re-
stricts the source of clearly established law to this Court’s
jurisprudence.” Williams, 529 U.S. at 412; see also id. at 403
(rejecting the view that Ҥ 2254(d)(1) does not alter the previ-
ously settled rule of independent review” and “does no more
than express a mood that the Federal Judiciary must respect”
(citation and internal quotation marks omitted)). Recently, the
Court explained that if habeas relief depends upon the resolu-
tion of “an open question in [Supreme Court] jurisprudence,”
§ 2254(d)(1) precludes relief. Carey v. Musladin, 127 S. Ct.
649, 653, 654 (2006). Applying this standard in Musladin, the
Court denied relief because “[g]iven the lack of holdings from
this Court . . . it c[ould] not be said that the state court ‘unrea-
sonabl[y] appli[ed] clearly established Federal law.’ ” Id. at
654 (citing § 2254(d)(1)). The Court’s decision in Musladin
underscores that § 2254(d)(1) tightly circumscribes the grant-
ing of habeas relief.

decides a case differently than this Court has on a set of materi-
ally indistinguishable facts. Under the “unreasonable application”
clause, a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from this Court’s
decisions but unreasonably applies that principle to the facts of
the prisoner’s case.
Williams, 529 U.S. at 412-13.
 CRATER v. GALAZA 8143
2

In evaluating the validity of these constraints upon the writ,
we must look, of course, to the text and structure of the Con-
stitution. Article III states that “[t]he judicial power shall
extend to all cases, in law and equity, arising under this Con-
stitution, the laws of the United States, and treaties made, or
which shall be made, under their authority.” U.S. Const. art.
III, § 2, cl. 1. In defining the judicial power, Article III pro-
vides for one Supreme Court with original jurisdiction over an
enumerated category of cases affecting state parties and cer-
tain public officials. Id. In “all the other cases,” the Supreme
Court has only “appellate jurisdiction, both as to law and fact,
with such exceptions, and under such regulations as the Con-
gress shall make.” U.S. Const. art. III, § 2, cl. 2 (emphasis
added).

The Constitution does not expressly create inferior federal
courts or prescribe their original or appellate jurisdiction.
Indeed, the Constitution permits Congress to choose not to
establish inferior federal courts at all: “The judicial power of
the United States, shall be vested in one Supreme Court, and
in such inferior courts as the Congress may from time to time
ordain and establish.” U.S. Const. art. III § 1, cl. 1 (emphasis
added). Some have argued that the legislative authority to
create the lower courts necessarily includes the “lesser” power
to control such courts. But such legislative power would
appear to contradict the separation of powers integral to the
Constitution. See U.S. Const. arts. I-III (separating and distin-
guishing the powers of the executive, legislative, and judicial
branches). Thus, the Supreme Court has found it necessary to
set bounds upon congressional control of the courts. See City
of Boerne v. Flores, 521 U.S. 507, 536 (1997) (striking down
the Religious Freedom Restoration Act, because the statute
“contradicted vital principles necessary to maintain separation
of powers and the federal balance”). Both constitutional text
and structure define congressional authority in relation to the
courts.
8144 CRATER v. GALAZA
[3] The federal courts enjoy specific powers under the Con-
stitution’s tripartite division of authority. One such power is
the ability to hear petitions for writs of habeas corpus, origi-
nally designed as a means for enabling prisoners to challenge
the legality of their detention. See Lonchar v. Thomas, 517
U.S. 314, 323 (1996). Section 9 of Article I (the “Suspension
Clause”) mandates that the writ remain available in times of
peace: “The privilege of the writ of habeas corpus shall not
be suspended, unless when in cases of rebellion or invasion
the public safety may require it.” U.S. Const. art. I, § 9, cl. 2.
But the clause does not specify in which courts jurisdiction
over the writ must lie.3 The Constitution leaves such matters
to legislation. See Ex Parte Bollman, 8 U.S. (4 Cranch) 75, 94
(1807).

Congress has given the federal courts original habeas juris-
diction under 28 U.S.C. § 2241 and appellate habeas jurisdic-
tion under 28 U.S.C. § 2255.4 Such grants derive from distant
historical origins: “Federal courts have been authorized to
issue writs of habeas corpus since the enactment of the Judi-
ciary Act of 1789, and § 2241 of the Judicial Code provides
that federal judges may grant the writ of habeas corpus on the
application of a prisoner held ‘in custody in violation of the
Constitution or laws or treaties of the United States.’ ” INS v.
St. Cyr, 533 U.S. 289, 305 (2001) (citation omitted). Congress
thus has filled out the general provisions for habeas corpus set
3
State courts have the power to entertain petitions from prisoners in
state detention, but lack the power to entertain petitions for writs of habeas
corpus from prisoners in federal detention. See Ableman v. Booth, 62 U.S.
(21 How.) 506, 515-16 (1858); Tarble’s Case, 80 U.S. (13 Wall.) 397,
411-12 (1871).
4
This appellate jurisdiction extends over a different set of cases than
those encompassed by the Court’s original jurisdiction and includes mat-
ters whose disposition is “necessary to enable [the Court] to exercise
appellate jurisdiction.” See Marbury v. Madison, 5 U.S. (1 Cranch) 137,
175 (1803) (ruling that because writs of mandamus were not specifically
enumerated as part of the Court’s original jurisdiction, they could be rec-
ognized only if part of or incident to its appellate jurisdiction).
 CRATER v. GALAZA 8145
forth in the Constitution. The question is whether AEDPA
impermissibly alters the constitutional framework.

3

[4] We construe Crater’s claim that § 2254(d)(1) violates
the Suspension Clause as an assertion that AEDPA either
expressly or impliedly strips the federal courts of habeas juris-
diction. See St. Cyr, 533 U.S. at 305 (noting that “serious Sus-
pension Clause issue[s]” arise if Congress attempted to bar all
habeas jurisdiction). The plain text defeats any suggestion that
§ 2254(d)(1) eliminates habeas jurisdiction entirely. The text
of the provision merely sets forth standards for granting relief
to state petitioners and does not even apply unless jurisdiction
exists. Where a habeas statute “contains no explicit provision
barring habeas review,” habeas jurisdiction remains intact.
Demore v. Kim, 538 U.S. 510, 517 (2003).5

Greater attention must be given to Crater’s apparent view
that § 2254(d)(1) constrains relief so dramatically that it effec-
tively suspends the writ.6 Under § 2254(d)(1), relief remains
5
The Supreme Court has explained that suspension of the writ does not
occur unless a statute expresses Congress’s “clear and unambiguous”
intent to remove all federal habeas jurisdiction. St. Cyr, 533 U.S. at 305.
In St. Cyr, the Court addressed the constitutionality of a provision of
AEDPA titled “Elimination of Custody Review by Habeas Corpus.” Id. at
308. The Court read the provision narrowly and concluded that it only
reduced habeas jurisdiction: “The actual text of § 401(e), unlike its title,
merely repeals a subsection of the 1961 statute amending the judicial
review provisions of the 1952 Immigration and Nationality Act. Neither
the title nor the text makes any mention of 28 U.S.C. § 2241.” Id. at 309
(citation omitted)). The Court explained that this narrow reading was war-
ranted to avoid “a serious Suspension Clause issue” that could arise if all
habeas jurisdiction were repealed. “The necessity of resolving such a seri-
ous and difficult constitutional issue—and the desirability of avoiding that
necessity—simply reinforce the reasons for requiring a clear and unambig-
uous statement of congressional intent.” Id. at 305, 308-09.
6
The brevity of Crater’s argument causes us some confusion as to the
precise premise for his Suspension Clause claim. The Fourth Circuit
8146 CRATER v. GALAZA
available, but is reserved for cases where a state adjudication
“resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” A
crucial distinction lies between § 2254(d)(1)’s constraint on
granting relief and an effective suspension of the writ. In
Felker v. Turpin, the Court upheld the constitutionality of 28
U.S.C. § 2244(b) of AEDPA, which bars successive habeas
petitions, based upon this essential distinction:

We hold that the Act does not preclude this Court
from entertaining an application for habeas corpus
relief, although it does affect the standards govern-
ing the granting of such relief. We also conclude that
the availability of such relief in this Court obviates
any claim by petitioner under the Exceptions Clause
of Article III, § 2, of the Constitution, and that the
operative provisions of the Act do not violate the
Suspension Clause of the Constitution, Art. I, § 9.

518 U.S. 651, 654 (1996) (emphasis added).

[5] Relying heavily on the Court’s analysis in Felker, the
Fourth Circuit rejected a Suspension Clause challenge to
§ 2254(d)(1), and explained: “From our review of the few
precedents interpreting the Suspension Clause, we conclude
that amended section 2254(d)(1) does not suspend the privi-
lege of the writ, but rather, represents a modest congressional
alteration of the standards pursuant to which the writ issues.”

encountered a similar problem when addressing a Suspension Clause chal-
lenge to § 2254(d)(1), and “confess[ed] to confusion over [the petitioner’s]
abbreviated argument on this score.” Green v. French, 143 F.3d 865, 875
(4th Cir. 1998), cert. denied 525 U.S. 1090 (1999). “Apparently, [the peti-
tioner]’s argument” here, as in Green, “is that any statutory modification
of the availability of habeas relief that ‘sharply limits’ a federal court’s
power to grant the writ ‘threatens a violation of the Suspension Clause.’ ”
Id.
 CRATER v. GALAZA 8147
Green v. French, 143 F.3d 865, 875 (4th Cir. 1998), cert.
denied 525 U.S. 1090 (1999) (emphasis added).7

Likewise relying on Felker, the Seventh Circuit reached the
same conclusion: “[T]o alter the standards on which writs
issue is not to ‘suspend’ the privilege of the writ.” Lindh v.
Murphy, 96 F.3d 856, 867 (7th Cir. 1996) (en banc), rev’d on
other grounds, 521 U.S. 320 (1997). The court emphasized
that only a limited class of cases was cognizable on collateral
review in 1789. See id. at 867-68. The Constitution permitted
Congress to grant additional habeas jurisdiction, but such
grants were discretionary and could be repealed. See id. at 868
(citing Ex Parte McCardle, 74 U.S. (7 Wall.) 506, 513-14
(1869) (allowing Congress to remove a prior grant of habeas
jurisdiction)). Because AEDPA simply altered Congress’s
earlier grants of habeas jurisdiction, the Seventh Circuit found
no Suspension Clause violation. “Any suggestion that the
Suspension Clause forbids every contraction of the powers
bestowed [subsequent to 1789] . . . is untenable. The Suspen-
sion Clause is not a ratchet.” Id.

[6] We agree with the Fourth and Seventh Circuits. Section
2254(d)(1) simply modifies the preconditions for habeas
relief, and does not remove all habeas jurisdiction. See Felker,
518 U.S. at 658 (“[A]lthough the Act does impose new condi-
tions on our authority to grant relief, it does not deprive this
Court of jurisdiction to entertain original habeas petitions.”).
The validity of such parameters on habeas relief can be veri-
fied by consideration of the Court’s decision in Teague v.
7
In Williams, the Supreme Court rejected the part of Green that con-
cluded that a state decision is an “unreasonable application” only if “all
reasonable jurists” would consider it such. The Court explained that while
“[t]he Fourth Circuit’s interpretation of the ‘unreasonable application’
clause of § 2254(d)(1) [wa]s generally correct,” 529 U.S. at 407, the “un-
reasonable application” clause requires only objective unreasonableness,
not judicial consensus. See id. at 410. The Court did not discuss whether
the Fourth Circuit was correct in its rejection of Green’s constitutional
challenge to § 2254(d)(1). See Green, 143 F.3d at 874-76.
8148 CRATER v. GALAZA
Lane, 489 U.S. 288 (1989). There, the Court held that “new
rules” of constitutional law did not apply retroactively on col-
lateral review, so that certain errors of constitutional law
could not be grounds for collateral relief. The Court explained
that while such errors had to be reversible on direct appeal,
they did not always warrant collateral relief. Id. at 302; see
also Griffith v. Kentucky, 479 U.S. 314, 322 (1987)
(“[F]ailure to apply a newly declared constitutional rule to
criminal cases pending on direct review violates basic norms
of constitutional adjudication.”); Teague, 489 U.S. at 306, 309
(contrasting direct proceedings with the “nature and function
of collateral review” and noting that the “interests of comity
and finality must also be considered in determining the proper
scope of habeas review”).

[7] Teague highlights an important distinction between the
scope of direct and collateral review, and supports the conclu-
sion that restrictions on the grounds for habeas relief—
whether set by Congress or the Court—do not constitute sus-
pension of the writ. Both Felker and Teague confirm our con-
clusion that § 2254(d)(1) raises no Suspension Clause issue.
We reject such challenge to AEDPA.

4

[8] We next consider Crater’s claim that § 2254(d)(1) vio-
lates the separation of powers by “unconstitutionally infring-
[ing] upon the role of federal courts in rectifying
constitutional errors that are challenged by prisoners in collat-
eral § 2254 proceedings.” Section 2254(d)(1) prevents federal
courts from granting habeas relief to a state petitioner where
the relevant decision is not “contrary to” or “an unreasonable
application of” Supreme Court precedent. See Musladin, 127
S. Ct. at 654 (denying habeas relief under AEDPA where the
issue remained “an open question” under Supreme Court
 CRATER v. GALAZA 8149
jurisprudence). Thus, § 2254(d)(1) renders decisions by lower
courts non-dispositive for habeas appeals.8

Crater invokes a dissenting opinion from the Sixth Circuit
to support the “notion that AEDPA . . . raises grave constitu-
tional concerns by impinging on the judicial power.” Davis v.
Straub, 430 F.3d 281, 296 (6th Cir. 2005) (Merritt, J., dissent-
ing). That dissenting opinion argued for a narrow reading of
§ 2254(d)(1) in order to uphold its constitutionality, stating
that “Congress may not say to the federal courts ‘clearly
established law’ means a case in the Supreme Court directly
in point on the facts,” because that rule would “prevent[ ] our
Court from giving our independent judgment on the legal
effect of the evidence before us and by leaving us ‘no adjudi-
catory function to perform.’ ” Id. at 297.
8
In Casey v. Moore, 386 F.3d 896 (9th Cir. 2004), we explained the
reduced relevance of circuit decisions under the Act:
[B]ecause these cases are not clearly established law as deter-
mined by the United States Supreme Court, they are not control-
ling precedents under the standard required by AEDPA. Under
AEDPA we must look to the direct precedent of the Supreme
Court of the United States. Although lower federal court and state
court precedent may be relevant when that precedent illuminates
the application of clearly established federal law as determined
by the United States Supreme Court, if it does not do so, it is of
no moment.
Id. at 907 (citation omitted). These limits on the relevance of circuit prece-
dent were discussed and accepted by the Court in Musladin. See 127 S. Ct.
at 652-54.
Crater does not specifically claim that AEDPA is unconstitutional
because it denies precedential effect to circuit caselaw, perhaps because
we already rejected that claim. See Duhaime v. Duharme, 200 F.3d 597,
601 (9th Cir. 2000) (“[O]ur cases . . . implicitly reject the argument that
§ 2254’s rule directing us to look to Supreme Court law when deciding
habeas petitions is unconstitutional under stare decisis principles . . . .”);
see also Planned Parenthood v. Casey, 505 U.S. 833, 854 (1992) (“[T]he
rule of stare decisis is not an ‘inexorable command,’ and certainly it is not
such in every constitutional case.”).
8150 CRATER v. GALAZA
[9] We are not persuaded that AEDPA has this effect. Sec-
tion 2254(d)(1) does not instruct courts to discern or to deny
a constitutional violation. Instead, it simply sets additional
standards for granting relief in cases where a petitioner has
already received an adjudication of his federal claims by
another court of competent jurisdiction. The Constitution does
not forbid Congress from establishing such standards, as the
Fourth Circuit has eloquently explained:

In amending section 2254(d)(1), Congress has sim-
ply adopted a choice of law rule that prospectively
governs classes of habeas cases; it has not subjected
final judgments to revision, nor has it dictated the
judiciary’s interpretation of governing law and man-
dated a particular result in any pending case. And
amended section 2254(d) does not limit any inferior
federal court’s independent interpretive authority to
determine the meaning of federal law in any Article
III case or controversy. Under the AEDPA, we are
free, if we choose, to decide whether a habeas peti-
tioner’s conviction and sentence violate any constitu-
tional rights. Section 2254(d) only places an
additional restriction upon the scope of the habeas
remedy in certain circumstances.

Green, 143 F.3d at 874-75.

Both history and Supreme Court precedent confirm Con-
gress’s authority to make such rules: “As the writ has evolved
. . . Congress, the [Habeas Corpus] Rule writers, and the
courts have developed more complex procedural principles
that regularize and thereby narrow the discretion that individ-
ual judges can freely exercise.” Lonchar, 517 U.S. at 322
(emphasis added). Indeed, the Court has considered some
aspects of habeas review at the juncture of procedure and sub-
stance to be best determined by the legislative branch. See
Vasquez v. Hillery, 474 U.S. 254, 265 (1986) (declining to
“create a new judicial rule” where “despite many attempts in
 CRATER v. GALAZA 8151
recent years, Congress has yet to create a congressional stat-
ute of limitations for habeas corpus actions”); see also Hanna
v. Plumer, 380 U.S. 460, 464-65 (1965) (“Undoubtedly most
alterations of the rules of practice and procedure may and
often do affect the rights of litigants.” (citing Mississippi Pub.
Corp. v. Murphree, 326 U.S. 438, 445 (1946)).

Prior Supreme Court precedent on AEDPA verifies that
§ 2254(d)(1) falls well within Congress’s constitutional and
historical authority to regulate habeas relief:

[W]e have long recognized that “the power to award
the writ by any of the courts of the United States,
must be given by written law,” Ex parte Bollman, 4
Cranch 75, 94 (1807), and we have likewise recog-
nized that judgments about the proper scope of the
writ are “normally for Congress to make.” Lonchar
v. Thomas, 517 U.S. 314, 323 (1996).

Felker v. Turpin, 518 U.S. at 664 (emphasis added) (parallel
citations omitted).

We are not persuaded by Crater’s analogy between AEDPA
and the statutory rule deemed unconstitutional in United
States v. Klein, 80 U.S. (13 Wall.) 128 (1871). In Klein, the
Court reviewed a proviso attached to an appropriations bill
that

declare[d] in substance that no pardon, acceptance,
oath, or other act performed in pursuance, or as a
condition of pardon, shall be admissible in evidence
in support of any claim against the United States in
the Court of Claims, or to establish the right of any
claimant to bring suit in that court; nor, if already put
in evidence, shall be used or considered on behalf of
the claimant, by said court, or by the appellate court
on appeal.
8152 CRATER v. GALAZA
Id. at 143. The Court analyzed the proviso in light of the leg-
islative power to govern the “organization and existence” of
“those inferior courts which Congress authorizes”:

Undoubtedly the legislature has complete control
over the organization and existence of [such inferior
court] and may confer or withhold the right of appeal
from its decisions. And if this act did nothing more,
it would be our duty to give it effect. If it simply
denied the right of appeal in a particular class of
cases, there could be no doubt that it must be
regarded as an exercise of the power of Congress to
make ‘such exceptions from the appellate jurisdic-
tion’ as should seem to it expedient.

Id. But the Court stated that “the language of the proviso
shows plainly that it does not intend to withhold appellate
jurisdiction except as a means to an end. Its great and control-
ling purpose is to deny to pardons granted by the President the
effect which this court had adjudged them to have.” Id. at 145.
Thus the Court found the proviso to exceed Congress’s
authority, because it “prescribe[d] a rule for the decision of a
cause in a particular way.” Id. at 146.

The Klein decision reiterates that statutes “control[ling] the
organization and existence” of the inferior courts fall within
congressional power, but that Congress may not predetermine
the results in any given case. AEDPA comports with this dis-
tribution of constitutional authority. Section 2254(d)(1) does
not restrict the federal courts’ power to interpret the law, but
only sets standards for what state court errors of law require
federal habeas relief. As the Seventh Circuit noted when con-
sidering § 2254(d)(1), “[r]egulating relief is a far cry from
limiting the interpretive power of the courts.” Lindh, 96 F.3d
at 872.

[10] Likewise unavailing is Crater’s attempt to analogize
AEDPA to the Religious Freedom and Restoration Act
 CRATER v. GALAZA 8153
(“RFRA”), 42 U.S.C. § 2000bb, deemed unconstitutional in
City of Boerne v. Flores, 521 U.S. 507 (1997). RFRA man-
dated that all federal courts apply Congress’s preferred consti-
tutional interpretation of the Free Exercise Clause, which
mirrored the older standard set forth in Sherbert v. Verner,
374 U.S. 398 (1963), rather than the newer one iterated in
Employment Division v. Smith, 494 U.S. 872 (1990). See 42
U.S.C. § 2000bb. Concluding that this mandate exceeded the
scope of congressional authority, the Court held RFRA
unconstitutional. City of Boerne, 521 U.S. at 536. The Court
explained that Congress has no power to “enact legislation
that expands the rights [enumerated in the Constitution],” id.
at 527-28, or to “define its own powers by altering the [Con-
stitution’s] meaning,” id. at 529. Unlike RFRA, § 2254(d)(1)
does not mandate Congress’s preferred vision of the law. The
provision makes Supreme Court precedent the lynchpin for
relief; it never supplants judicial judgment with legislative
choice. Crater’s separation of powers argument therefore
fails.

B

The constitutional foundation of § 2254(d)(1) is solidified
by the Supreme Court’s repeated application of the statute.
Although the Court has not squarely addressed its constitu-
tional validity, for the past eleven years the Court has consis-
tently applied AEDPA’s standard of review to appellate
habeas petitions. See Abdul-Kabir v. Quarterman, 127 S. Ct.
1654, 1664, 1671 (2007) (requiring habeas relief because “the
provisions of [AEDPA] govern the scope of our review” and
the state court decision “was both ‘contrary to’ and ‘involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United
States’ ”); Tyler v. Cain, 533 U.S. 656, 659 (2001) (applying
AEDPA’s rule against successive habeas petitions to deny
federal habeas relief); Lindh, 521 U.S. at 336 (holding that
AEDPA applies to habeas petitions filed after April 24, 1996).
We consider the Court’s longstanding application of the rules
8154 CRATER v. GALAZA
set forth in AEDPA to be strong evidence of the Act’s consti-
tutionality. See Marbury v. Madison, 5 U.S. (1 Cranch) 137,
176 (1803) (“It is, emphatically, the province and duty of the
judicial department, to say what the law is. Those who apply
the rule . . . must of necessity expound and interpret that rule.
So, if a law be in opposition to the constitution . . . the consti-
tution, and not such ordinary act, must govern the case . . . .”).

The settled law of this circuit also confirms this conclusion.
In Duhaime v. Ducharme, 200 F.3d 597 (9th Cir. 2000), we
explained that “our cases . . . implicitly reject the argument
that § 2254’s rule directing us to look to Supreme Court law
when deciding habeas petitions is unconstitutional under stare
decisis principles and Article III, and that such an application
runs counter to congressional intent and would disrupt judicial
efficiency” and ruled that “§ 2254(d)(1) does not suffer from
any Article III constitutional infirmities.” Id. at 601. We
recently recognized that Duhaime is the law of this circuit.
See Irons v. Carey, 479 F.3d 658, 665 n.5 (2007). Although
Duhaime offered only a cursory analysis of the constitutional-
ity of § 2254(d)(1), its holding binds us today.9
9
Unfortunately, the peculiar procedural history of Irons may have
engendered some confusion on this score. The panel issued a sua sponte
order for supplemental briefing on the constitutionality of AEDPA, imply-
ing that the validity of § 2254(d)(1) remained in question despite
Duhaime. See Irons v. Carey, 408 F.3d 1165, 1165 (9th Cir. 2005). After
supplemental briefing, the panel concluded that Duhaime settled the mat-
ter after all. Irons, 479 F.3d at 665 n.5. But two concurrences raised con-
stitutional objections to AEDPA and one was joined by a majority of the
panel. See id. at 665 (Noonan, J., concurring) (noting that “if I cannot
depart from the law of the circuit, I may still ask the question as to consti-
tutionality in light of governing decisions by the Supreme Court.”); id. at
670 (Reinhardt, J., concurring) (suggesting that § 2254(d)(1) is “inconsis-
tent with our fundamental obligations as judges” and joining Judge Noo-
nan’s “sagacious concurrence”). Although it may have been unusual that
a majority of the panel challenged the validity of the precedent upon
which the court relied, these concurrences simply expressed “strongly-
held views about the strictures of the AEDPA, without creating a conflict
in the law of this circuit.” Id. at 671 (Fernandez, J., concurring). The Irons
opinion leaves no doubt that Duhaime settles our law with respect to
§ 2254(d)(1). Id. at 665 n.5 (majority opinion).
 CRATER v. GALAZA 8155
But we do not rely on principles of stare decisis alone.
Compare Irons, 408 F.3d at 665 n.5 (concluding that
§ 2254(d)(1) had to be applied because “Duhaime . . . answer-
[ed] the question, correctly or not, for the court”). Our holding
that § 2254(d)(1) is constitutionally firm is based upon the
constitutional text, the Supreme Court’s interpretation of other
statutes limiting habeas relief, and the Court’s longstanding
application of AEDPA. These first principles, as well as the
doctrine of stare decisis, require us to conclude that
§ 2254(d)(1) does not conflict with the Suspension Clause or
breach the constitutional separation of powers. We therefore
must apply § 2254(d)(1) to resolve Crater’s remaining claims.

III

A

Crater next argues that due process required recusal of his
trial judge. He claims that an impermissible appearance of
bias was created when the judge made the following state-
ments to Crater at an in camera pretrial conference:

Well, Andrew [Crater], you’ve been in my court a
few times during the trial of your co-defendant, Rob-
inson. So you should know that I’m Judge Park, and
I’m going to be trying your case. And I’m going to
be sentencing you as well if you’re found guilty,
which I expect will happen.

I understand that the District Attorney’s office has
made a major concession in your case, and has made
an offer to you which, for reasons I want to talk to
you about, you’re not so sure you want to accept.

Based upon what I know about this case—and I’m
in a very unique position in this case, because I’ve
already heard all of the witnesses, I know everything
that happened that night, and I have assessed every-
8156 CRATER v. GALAZA
thing that the witnesses have said, and therefore, I
know what they are going to say about you.

And based upon what I’ve heard about this case, I’m
real sure that you’re going to be convicted of all of
those robberies, that you’re going to be convicted of
shooting the first robbery victim. You’re going to be
convicted of all of the attempted robberies, and
you’re going to be found guilty of murder in the first
degree. I’m real sure all that’s going to happen. And
I suspect Miss Gutowsky10 is real sure of that as
well, as I’ll bet she has been telling you that. Miss
Gutowsky is a very experienced lawyer, and you
should listen to her.

The risk you run in going to trial is that the jury may
find the special circumstance to be true . . . . The
special circumstance which makes you ineligible for
ever getting out of prison is very similar to the fel-
ony murder rule, but does require evidence that you
acted recklessly that night with respect to the murder
of Pantages. That’s the only real issue that this jury
would decide. . . . [B]ased upon everything I’ve
heard, that is a monumental risk for you.

A jury is not going to like you. A jury is going to be
frightened by what they hear from these witnesses
occurring that night. They will put themselves at the
ATM. They will put themselves out walking the
streets. . . . You have very little to go on in this case.
You might beat the special circumstance; I don’t
think you will. . . .

And I, as the judge, am supposed to keep an open
mind about what sentence to impose . . . . This much
I can tell you, I would have no discretion on first
10
Ms. Gutowsky represented Crater at trial.
 CRATER v. GALAZA 8157
degree murder, none. . . . I can also tell you that most
judges looking at what happened that night would
probably be inclined to impose consecutive penalties
. . . . So most judges, I think, would throw the book
at you.

So in a nutshell, this is an offer which gives you, at
some time in your life, an opportunity to get out of
prison. If you go before this jury and lose on the spe-
cial circumstance issue, you will get out of prison
someday, but it will be in a pine box. You will die
in prison if you are found guilty of the special cir-
cumstance. . . .

. . . [Y]ou have a right to go to trial. In my opinion,
it’s a mistake for you to take that kind of risk,
because I think all you have is downside and no
upside potential.

Crater contends that the foregoing statements made it impos-
sible for that judge to conduct a fair trial.

1

[11] Supreme Court precedent reveals only three circum-
stances in which an appearance of bias—as opposed to evi-
dence of actual bias—necessitates recusal. First, due process
requires recusal of a judge who “has a direct, personal, sub-
stantial pecuniary interest in reaching a conclusion against
[one of the litigants].” Tumey v. Ohio, 273 U.S. 510, 523
(1927); see also Ward v. Vill. of Monroeville, 409 U.S. 57, 60
(1972) (citing Tumey, 273 U.S. at 523); Aetna Life Ins. Co. v.
Lavoie, 475 U.S. 813, 821-22 (1986) (same).

2

[12] Second, due process requires recusal if a judge
becomes “embroiled in a running, bitter controversy” with
8158 CRATER v. GALAZA
one of the litigants. Mayberry v. Pennsylvania, 400 U.S. 455,
465 (1971). In Mayberry, a judge presided over a trial for
contempt after being made “the target of petitioner’s inso-
lence.” Id. On review, the Supreme Court noted that the per-
sonal nature of the attacks jeopardized the judge’s ability to
remain fair: “Many of the words leveled at the judge in the
instant case were highly personal aspersions, even ‘fighting
words’—‘dirty sonofabitch,’ ‘dirty tyrannical old dog,’ ‘stum-
bling dog,’ and ‘fool.’ He was charged with running a Spanish
Inquisition and told to ‘Go to hell’ and ‘Keep your mouth
shut.’ ” Id. at 466.

3

[13] Third, due process requires recusal if the judge acts as
“part of the accusatory process.” In re Murchison, 349 U.S.
133, 137 (1955). The Murchison Court rejected a Michigan
law authorizing “any judge of its courts of record to act as a
so-called ‘one-man grand jury.’ ” Id. at 133. In Murchison,
the judge had acted as a grand jury to bring contempt charges
against the petitioners, and had then tried, convicted, and sen-
tenced them. Id. at 135. The Supreme Court reversed their
convictions, stating: “[O]ur system of law has always endeav-
ored to prevent even the probability of unfairness. To this end
no man can be a judge in his own case and no man is permit-
ted to try cases where he has an interest in the outcome.” Id.
at 136.

B

[14] None of the three circumstances requiring recusal
reflects the case at bar. Crater’s judge had no “direct, per-
sonal, substantial pecuniary interest” in the outcome, as he
made clear at the pretrial conference: “If I’m not trying your
case, I’ll be trying another one. . . . And frankly, it makes no
difference to me. . . . But I hate to see somebody twenty-one
years old with your intelligence and potential make what is in
a word a stupid decision.”
 CRATER v. GALAZA 8159
He did not become “ ‘personally embroiled’ ” in a contro-
versy with Crater and Crater directed no “highly personal
aspersions” against him. Mayberry, 400 U.S. at 465-66. The
judge’s pre-trial comments suggested concern for Crater, not
the “open hostility and bias at the beginning of a judicial pro-
ceeding” that the Sixth Circuit denounced in Anderson v.
Sheppard, 856 F.2d 741, 747 (6th Cir. 1988), a case that Cra-
ter invokes. And Crater’s decision to decline the plea bargain
may have appeared foolish, but that choice was not the kind
of “personal” attack that might incite bias in the judge. See
Mayberry, 400 U.S. at 466.

[15] Finally, the judge did not perform incompatible accu-
satory and judicial roles. See Murchison, 349 U.S. at 137. He
neither acted as a prosecutor nor sought to advance the posi-
tion of the prosecutor—indeed, he continued to encourage the
plea bargain even after the prosecutor suggested rescinding
the proposal due to Crater’s lack of remorse. The judge’s pre-
dictions did not suggest bias. The Supreme Court has stated
that “opinions formed by the judge on the basis of facts intro-
duced or events occurring in the course of the current pro-
ceedings, or of prior proceedings, do not constitute a basis for
a bias or partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
impossible.” Liteky v. United States, 510 U.S. 540, 555
(1994). The judge’s comments, founded upon his legitimate
knowledge of the proceedings and outcome in Robinson’s
case, offer no evidence to overcome the “presumption of hon-
esty and integrity” that we accord to the determinations of a
judge. Withrow v. Larkin, 421 U.S. 35, 47 (1975). Therefore,
the California Court of Appeal’s conclusion that “the law
d[id] not compel disqualification for presumed judicial bias”
accords with “clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1).
8160 CRATER v. GALAZA
IV

A

[16] Crater also challenges the California Court of Appeal’s
conclusion that publicity surrounding the case did not require
a change of venue.11 He claims that under federal law, the
state court was required to presume that the publicity preju-
diced the local jury against him, a constitutional impediment
to a fair trial that could only be avoided by a change of venue.
To support this claim, Crater argues that the extensive media
attention given his case created presumptive bias in local resi-
dents. He states that the “ ‘vast majority’ of the members of
the panel of prospective jurors . . . indicated that they had
been exposed to publicity concerning the case” and “eight of
the twelve jurors originally seated to hear the case expressly
stated that they had been exposed to publicity concerning the
case.” While this evidence shows that publicity reached many
persons in the community, we disagree that it supports a
change of venue as a matter of federal constitutional law.
Indeed, the Supreme Court has cautioned against presuming
juror bias due to familiarity with news reports:

It is not required, however, that the jurors be
totally ignorant of the facts and issues involved. In
these days of swift, widespread and diverse methods
of communication . . . scarcely any of those best
qualified to serve as jurors will not have formed
some impression or opinion as to the merits of the
11
The state court considered whether a change of venue was mandatory
under state law, which requires the assessment of “five relevant factors:
(1) nature and gravity of the offense; (2) nature and extent of the media
coverage; (3) size of the community; (4) community status of the defen-
dant; and (5) prominence of the victim.” People v. Sully, 812 P.2d 163,
169 (Cal. 1991). The California Court of Appeal concluded based on these
factors that a change of venue was not necessary. Although the court did
not cite any federal law, we will not reverse its decision solely for that rea-
son. See Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam).
 CRATER v. GALAZA 8161
case. This is particularly true in criminal cases. To
hold that the mere existence of any preconceived
notion as to the guilt or innocence of an accused,
without more, is sufficient to rebut the presumption
of a prospective juror’s impartiality would be to
establish an impossible standard.

Irvin v. Dowd, 366 U.S. 717, 722-23 (1961). Crater then
appeals to Irvin’s ultimate conclusion that vacating and
remanding was necessary. But the circumstances that ulti-
mately required a change of venue in Irvin are distinguishable
from those at bar. In addition to a “barrage of newspaper
headlines, articles, cartoons and pictures . . . unleashed against
[the defendant] during the six or seven months preceding his
trial,” id. at 725, the Irvin Court noted a “ ‘pattern of deep and
bitter prejudice’ shown to be present throughout the commu-
nity,” id. at 727. The Court remarked that eight of the twelve
jurors selected thought Irvin was guilty. See id. Crater’s case
offers no similar evidence of media influence. Although Cra-
ter asserts that “[n]umerous press accounts were published in
which he was characterized as an ‘urban predator[,]’ a ‘cold-
blooded killer[,]’ and an ‘anti-social animal,’ ” in fact many
of those reports came out before the media knew who the sus-
pects were. Once Crater and his co-defendant Robinson were
identified, detained, and investigated, the news reports began
to contain more specific information, which cast Crater in a
relatively favorable light. For example, they described Robin-
son as an ex-felon who pistol-whipped his victims and fired
the fatal shot at Pantages, but portrayed Crater as a promising
student with no criminal record. Emphasizing the reported
contrast between the defendants, the California Court of
Appeal concluded that only Robinson presented a persuasive
argument for a change of venue:

Robinson’s argument [wa]s more compelling than
Crater’s because the coverage targeted him, not only
as an outsider, but as the person responsible for Pant-
ages’s death. Crater’s confession implicating Robin-
8162 CRATER v. GALAZA
son was disseminated widely . . . the district attorney
explained to the press he was seeking the death pen-
alty against Robinson [but not Crater] because he
was the shooter who killed Pantages . . . . Hence, the
coverage portraying Robinson as a violent criminal
from Oakland militates toward a change of venue for
him. Crater’s status was reported somewhat more
sympathetically. He was portrayed as an achiever,
someone who had succeeded against difficult odds in
the inner city, someone without a criminal record.
. . . Moreover, as a student in Davis, he was not
removed from Sacramento geographically or cultur-
ally. We conclude the reporting on Crater’s back-
ground is not a factor necessitating a change of
venue for him.

While the state court reached its determination without refer-
ence to federal law, we share its conclusion that the news
reports did not create presumptive bias.

1

This conclusion is not unsettled by Crater’s citation to
Sheppard v. Maxwell, 384 U.S. 333 (1966). In Sheppard, the
Court concluded that a due process violation occurred when
the state trial judge ignored the effects of prejudicial pretrial
publicity and failed to restrain disruptive influences in the
courtroom. The facts of Sheppard are readily distinguishable
from those at bar. Sheppard was accused of bludgeoning to
death his pregnant wife, and “[f]or months the virulent public-
ity about Sheppard and the murder had made the case notori-
ous. . . . Sheppard was examined for more than five hours
without counsel during a three day inquest which ended in a
public brawl. The inquest was televised live from a high
school gymnasium seating hundreds of people.” Id. at 354.
The Court noted that both the prosecutor and judge were run-
ning for judgeships in the upcoming election. Id. Even so, the
Court was hesitant to require a change of venue based on pre-
 CRATER v. GALAZA 8163
trial publicity alone: “We cannot say that Sheppard was
denied due process by the judge’s refusal to take precautions
against the influence of pretrial publicity alone . . . .” Id. Only
when the Court also considered “the setting in which the trial
was held” and the fact that “bedlam reigned at the courthouse
during the trial and newsmen took over practically the entire
courtroom, hounding most of the participants in the trial” did
it conclude that the conviction had to be reversed. Id. at 355
(emphasis added). Crater does not argue that his trial proceed-
ings were similarly influenced by prejudicial media coverage
or disrupted by news reporters. The state court aptly remarked
that the coverage of Crater’s case “was [no] more sensational
than the very nature of the crime itself would require.” And
we add that the media attention in his case lasted for a far
shorter period than did the harmful publicity in Sheppard. The
facts of the cases are not comparable.

2

Nor are we persuaded that a due process violation occurred
based upon Crater’s citations to Rideau v. Louisiana, 373 U.S.
723 (1963), and Estes v. Texas, 381 U.S. 532 (1965). We see
at bar none of the prejudice resulting from news coverage that
was obvious in those cases. In Rideau, the residents of the
county where Rideau was tried “saw on their television sets
[a motion picture of] Rideau, in jail, flanked by the sheriff and
two state troopers, admitting in detail the commission of the
robbery, kidnapping, and murder, in response to leading ques-
tions by the sheriff.” 373 U.S. at 725. This motion picture had
been created “with the active cooperation and participation of
the local law enforcement officers,” id., and two local deputy
sheriffs later were seated on Rideau’s trial jury for what the
Court denounced as “kangaroo court proceedings,” id. at 726.
Crater presents no similar evidence of prejudicial news cover-
age or participant bias.

B

Not only do Sheppard, Rideau, and Estes involve evidence
of prejudice absent at bar, but those cases have been limited
8164 CRATER v. GALAZA
by subsequent Supreme Court decisions. In Murphy v. Flor-
ida, 421 U.S. 794 (1975), the Supreme Court addressed a situ-
ation where “members of the jury had learned from news
accounts about a prior felony conviction or certain facts about
the crime with which [the petitioner] was charged.” Id. at 795.
The Court considered this knowledge acceptable and distin-
guished the far more problematic media effects in Rideau,
Estes, and Sheppard:

Prejudice was presumed in the circumstances
under which the trials in Rideau, Estes, and Shep-
pard were held. In those cases the influence of the
news media, either in the community at large or in
the courtroom itself, pervaded the proceedings. . . .
In Rideau . . . the Court did not examine the voir dire
for evidence of actual prejudice because it consid-
ered the trial under review “but a hollow formality”
—the real trial had occurred when tens of thousands
of people . . . had seen and heard the defendant admit
his guilt before the [news] cameras.

The trial in Estes had been conducted in a circus
atmosphere, due in large part to the intrusions of the
press, which was allowed to sit within the bar of the
court and to overrun it with television equipment.
Similarly, Sheppard arose from a trial infected not
only by a background of extremely inflammatory
publicity but also by a courthouse given over to
accommodate the public appetite for carnival.

Murphy, 421 U.S. at 798-99. The Court limited Rideau, Estes,
and Sheppard, commenting that those cases “cannot be made
to stand for the proposition that juror exposure to information
about a state defendant’s prior convictions or to news
accounts of the crime with which he is charged alone pre-
sumptively deprives the defendant of due process.” Id. at 799.

And in a later decision, the Court reversed a Third Circuit
ruling that adverse pretrial publicity made a fair trial impossi-
 CRATER v. GALAZA 8165
ble at the original venue. Patton v. Yount, 467 U.S. 1025
(1984). In Patton, “publicity revealed Yount’s prior convic-
tion for murder, his confession, and his prior plea of tempo-
rary insanity, information not admitted into evidence at trial.”
Id. at 1029. Seventy-seven percent of the veniremen ques-
tioned about the case “admitted they would carry an opinion
into the jury box.” Id. Even with this evidence of news influ-
ence, the Patton Court discerned no need to change venue.
The Court rejected the argument that Irvin required reversal,
noting that Irvin had been “a leading [decision] at the time”
but was inapposite at bar. Id. at 1031-32. The Patton Court
also underscored the importance of applying “the statutory
presumption of correctness to the trial court’s determination
of these questions.” Id. at 1038.

[17] Crater’s survey-based evidence suggesting that many
community residents believed that Crater and Robinson com-
mitted the crime does not justify a presumption that the jury
members ultimately selected shared such preconceptions or
were prejudiced by news accounts. No evidence persuades us
to doubt the state court’s determination of impartiality in a
jury winnowed by peremptory and for-cause challenges,
including removals based on news exposure.12
12
The Court’s more recent decision in Mu’Min v. Virginia, 500 U.S. 415
(1991) reaffirms that a change of venue does not become necessary simply
because of extensive news publicity regarding a case. There, although
eight of the twelve jurors in the case had “read or heard something about
the case,” none “indicated that they had formed an opinion based on the
outside information, or that it would affect their ability to determine peti-
tioner’s guilt or innocence based solely on the evidence presented at trial.”
Id. at 417. In affirming the decision of the trial court, the majority
explained: “A trial court’s findings of juror impartiality may be overturned
only for manifest error.” Id. at 428 (citations and quotation marks omit-
ted). “It is not required . . . that the jurors be totally ignorant of the facts
and issues involved.” Id. at 430 (same). Even though the trial court had
refused to conduct individual voir dire or to ask any of the petitioner’s
questions “relating to the content of news items that potential jurors might
have read or seen,” id. at 419, the Mu’Min Court found no due process
violation, id. at 431-32.
8166 CRATER v. GALAZA
The district court’s denial of habeas relief is

AFFIRMED.