NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL GONZALEZ, No. 17-55058
Petitioner-Appellant, D.C. No. 2:14-cv-01047-SVW-JEM
v.
MEMORANDUM *
CLARK E. DUCART, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen V. Wilson, District Judge, Presiding
Argued and Submitted April 10, 2019
Pasadena, California
Before: GRABER and BYBEE, Circuit Judges, and HARPOOL,** District Judge.
Petitioner Daniel Gonzalez appeals the district court’s denial of his 28
U.S.C. § 2254 habeas corpus petition. We have jurisdiction under 28 U.S.C. §§
1291 and 2253. On de novo review, Lujan v. Garcia, 734 F.3d 917, 923 (9th Cir.
2013), we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable M. Douglas Harpool, United States District Judge for
the Western District of Missouri, sitting by designation.
1. Petitioner first argues that insufficient evidence supports his two
convictions for attempted murder. We are bound by the California Court of
Appeal’s interpretation of state law, including its interpretation of People v. Smith,
124 P.3d 730, 744–45 (Cal. 2005), which allows a conviction for two counts of
attempted murder when a single bullet is fired. See Bradshaw v. Richey, 546 U.S.
74, 76 (2005) (per curiam) (“[A] state court’s interpretation of state law, including
one announced on direct appeal of the challenged conviction, binds a federal court
sitting in habeas corpus.”). The California Court of Appeal’s factual
determinations—that sufficient evidence supported a finding that Alvarez and
Jimenez both were in the line of fire and an inference that Blanco intended to kill
both men—were not unreasonable. 28 U.S.C. § 2254(d)(2), (e)(1). Thus, the
California Court of Appeal’s conclusion that sufficient evidence supported both
attempted murder convictions is neither contrary to nor an unreasonable
application of Jackson v. Virginia, 443 U.S. 307 (1979). See 28 U.S.C. §
2254(d)(1); Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam) (“[O]n
habeas review, a federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge” unless “the state court decision was
objectively unreasonable.” (internal quotation marks omitted)).
2. Petitioner next contends that Juror No. 3’s statements to other jurors
about her personal experiences with gangs tainted the jury in violation of his Sixth
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Amendment right to an impartial jury and that he was at least entitled to an
evidentiary hearing to question the other jurors about the effect of Juror No. 3’s
misconduct. Although the juror’s failure to reveal her experiences when
questioned in voir dire was misconduct, we conclude that reversal is not warranted.
The trial court removed and replaced the juror, admonished the jury, and required
new deliberations.
Given the trial court’s actions, Petitioner cannot show that the information
imparted by the juror had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); Smith v.
Swarthout, 742 F.3d 885, 894 (9th Cir. 2014) (applying Brecht harmless-error
standard to a juror misconduct claim on habeas review). That is particularly so
because the information was cumulative of gang evidence in the case that gang
members kill rival gang members.
Moreover, the California Court of Appeal’s conclusion that the trial court
did not abuse its discretion in declining to conduct an additional hearing to explore
the effect of the juror’s revelations was not contrary to or an unreasonable
application of clearly established federal law as announced by the Supreme Court.
See 28 U.S.C. § 2254(d)(1). Remmer v. United States, 347 U.S. 227 (1954), and
Smith v. Phillips, 455 U.S. 209 (1982), “do not stand for the proposition that any
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time evidence of juror bias comes to light, due process requires the trial court to”
conduct an evidentiary hearing. Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th
Cir. 2003) (emphasis omitted).
3. The California Court of Appeal’s summary denial of Petitioner’s
ineffective-assistance-of-counsel claim was neither contrary to nor an objectively
unreasonable application of Strickland v. Washington, 466 U.S. 668 (1984). See
28 U.S.C. § 2254(d)(1). Even assuming that trial counsel’s failure to obtain a
sworn statement was constitutionally deficient performance, there is no reasonable
argument that the failure prejudiced Petitioner. See Strickland, 466 U.S. at 691–93.
4. We do not consider additional arguments raised for the first time in the
reply brief. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
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