FILED
NOT FOR PUBLICATION OCT 29 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ELIOT SCOTT GRIZZLE, No. 11-17295
Petitioner - Appellant, D.C. No. 3:07-cv-04845-SI
v.
MEMORANDUM*
ROBERT A. HOREL, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding
Argued and Submitted October 17, 2012
San Francisco, California
Before: BEA and HURWITZ, Circuit Judges, and SESSIONS, District Judge.**
Eliot Scott Grizzle appeals the district court’s denial of his petition for a writ
of habeas corpus under 28 U.S.C. § 2254. Grizzle, an inmate at Pelican Bay State
Prison, was convicted of murder and conspiracy to murder another inmate. Grizzle
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable William K. Sessions, III, District Judge for the U.S.
District Court for Vermont, sitting by designation.
claims that the state trial court erred in denying his motion for a mistrial after a
juror who was employed at Pelican Bay reported being approached by an inmate
who identified him as Juror 5. Juror 5 spoke of this to other jurors; Grizzle
claimed the jury was thus tainted against him. After Juror 5 was excused, and the
remaining panel examined by court and counsel, an alternate juror was seated.
Grizzle did not object to the jury panel as constituted.
Federal courts will not review a question of federal law decided by a state
court if the decision of that court rests on a state law ground independent of the
federal ground and adequate to support the judgment. Coleman v. Thompson, 501
U.S. 722, 729-30 (1991). As noted, Grizzle failed to renew his mistrial motion
after court and counsel examined the jury panel for jury taint and Juror 5 was
replaced by an alternate juror. On direct appeal, the California Court of Appeal
held that Grizzle’s jury taint claim was procedurally defaulted under the California
contemporaneous objection rule. The district court correctly agreed, foreclosing
federal habeas relief as to that claim.
A valid procedural bar can be surmounted only if the petitioner demonstrates
cause and prejudice for the default or a fundamental miscarriage of justice.
Coleman, 501 U.S. at 750. Grizzle argues that if California’s contemporaneous
objection rule is deemed adequate, then his trial attorney’s failure to renew the
mistrial motion constitutes ineffective assistance of counsel, thereby constituting
cause for default. This claim is barred by the Antiterrorism and Effective Death
Penalty Act’s exhaustion requirement because Grizzle failed to raise his ineffective
assistance of counsel claim with respect to his jury taint claim in state court. 28
U.S.C. § 2254(b)(1)(A).
Even had the ineffective assistance of counsel claim been properly exhausted
in state court, it still would not provide cause to excuse Grizzle’s procedural
default. There were strategic grounds for not renewing the mistrial motion and
Grizzle failed to demonstrate prejudice resulting from counsel’s failure to renew
the motion. See Strickland v. Washington, 466 U.S. 668, 687 (1984).
Grizzle raises several uncertified claims. Reasonable jurists could not
debate whether the issues should have been resolved in a different manner. See
Miller-El v. Cockrell, 537 U.S. 322, 338 (2003). We therefore decline to grant a
certificate of appealability on the uncertified claims.
AFFIRMED.