NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 07 2011
MOLLY C. DWYER, CLERK
MICHAEL ANTHONY PIÑA, U.S. COURT OF APPEALS
No. 09-35483
Petitioner-Appellant,
D. C. No. 2:08-cv-00511- MJP
v.
MEMORANDUM*
STATE OF WASHINGTON, et al.,
Respondents-Appellees.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding
Argued and Submitted August 2, 2011
Seattle, Washington
Before: SCHROEDER and M. SMITH, Circuit Judges, and FOGEL, District
Judge**
Petitioner-Appellant Michael Piña (“Piña”) appeals the district court’s denial
of his petition for writ of habeas corpus brought under 28 U.S.C. § 2254 (2006).
He asserts that the district court erred in concluding that his federal constitutional
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jeremy Fogel, United States District Judge for the
Northern District of California, sitting by designation.
claims of juror misconduct are unexhausted and procedurally barred.
Piña exhausted his juror misconduct claims by presenting them to the
Washington Supreme Court in a personal restraint petition. See Casey v. Moore,
386 F.3d 896, 919 (9th Cir. 2004) (noting that “[i]n Washington, a personal
restraint petition may be used to assert the violation of a federal constitutional right
even if the defendant did not raise the issue on direct appeal.”).
We need not decide whether Piña’s juror misconduct claims are procedurally
barred because those claims clearly lack merit. See Franklin v. Johnson, 290 F.3d
1223, 1232 (9th Cir. 2002) (“[A]ppeals courts are empowered to, and in some
cases should, reach the merits of habeas petitions if they are, on their face and
without regard to any facts that could be developed below, clearly not meritorious
despite an asserted procedural bar.”); see also Lambrix v. Singletary, 520 U.S. 518,
525, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997) (holding that for reasons of judicial
economy an appellate court may pass on deciding complicated procedural bar
issues when a petition is “easily resolvable against the habeas petitioner” on other
grounds).
The state appellate court concluded that, even accepting as true Piña’s claim
that his mother overheard jurors discussing the case during an afternoon recess,
there was no indication that such discussion prejudiced Piña’s rights or that the
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trial court’s subsequent cautionary instructions were insufficient to ensure a fair
trial. These conclusions are entirely consistent with our case law. See Davis v.
Woodford, 384 F.3d 628, 653 (9th Cir. 2004) (trial court’s cautionary instructions
were sufficient to cure any possible prejudice arising from jury’s alleged premature
deliberations); United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974) (“The
important thing is not that jurors keep silent with each other about the case but that
each juror keep an open mind until the case has been submitted to the jury. . . .
The test is whether or not the misconduct has prejudiced the defendant to the extent
that he has not received a fair trial.”). In fact, the state appellate court relied
expressly upon Davis and Klee in rejecting Piña’s juror misconduct claims. We
have not found any United States Supreme Court authority that mandates a
different result. See Musladin v. Lamarque, 555 F.3d 830, 834 (9th Cir. 2009)
(citing 28 U.S.C. § 2254(d)) (holding in relevant part that a habeas petitioner must
demonstrate that the challenged state court decision was contrary to, or involved an
unreasonable application of, United States Supreme Court authority).
AFFIRMED.
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