NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT OCT 03 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
SHAWNDRA STAR BOODE, No. 15-16057
Petitioner-Appellant, D.C. No. 3:13-cv-02438-EMC
v.
MEMORANDUM*
D. K. JOHNSON, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted September 13, 2016**
San Francisco, California
Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.
Petitioner-Appellant Shawndra Star Boode brings a federal habeas petition
under 28 U.S.C. § 2254 challenging her jury conviction of two counts of first-
degree murder. The district court denied the petition. We have jurisdiction under
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
28 U.S.C. §§ 1291 and 2253 and review de novo the district court’s decision to
deny Boode’s habeas petition. See Yee v. Duncan, 463 F.3d 893, 897 (9th Cir.
2006). The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs our review. To warrant habeas relief under AEDPA, a petitioner must
show “that the earlier state court’s decision was contrary to federal law then clearly
established in the holdings of [the Supreme] Court, § 2254(d)(1); or that it
involved an unreasonable application of such law, § 2254(d)(1); or that it was
based on an unreasonable determination of the facts in light of the record before
the state court, § 2254(d)(2).” Hedlund v. Ryan, 815 F.3d 1233, 1239 (9th Cir.
2016) (quoting Harrington v. Richter, 562 U.S. 86, 100 (2011)). We affirm the
district court’s denial of Boode’s habeas petition for the following reasons.
1. The state trial court’s refusal to discharge a juror who perceived Boode’s
co-defendant, Jorge Rodriguez, to act in a threatening manner toward a witness
during trial did not violate Boode’s Sixth or Fourteenth Amendment rights to an
impartial jury. The alleged presence of juror bias presents a “question . . . of
historical fact: did a juror swear that he could set aside any opinion he might hold
and decide the case on the evidence, and should the juror’s protestation of
impartiality have been believed.” Patton v. Yount, 467 U.S. 1025, 1036 (1984).
In light of the record in the state court proceedings, we conclude that the trial
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court did not make an unreasonable determination of the facts. See 28 U.S.C.
§ 2254(d)(2). The juror ultimately testified that she thought she could still fairly
evaluate the case, and the trial court determined that the juror could continue to
serve fairly and impartially. “The trial court was in a superior position to observe
[the juror’s] physical appearance and demeanor and thereby to determine her
ability to continue deliberating.” Perez v. Marshall, 119 F.3d 1422, 1427 (9th Cir.
1997).
Given the juror’s statements that she thought she could be fair and the
deference due to the trial court’s assessment of the juror’s demeanor, Boode has
not shown that the trial court unreasonably found that the juror was impartial. See
Bashor v. Risley, 730 F.2d 1228, 1237 (9th Cir. 1984) (holding that a juror who
initially equivocated as to her impartiality could be found impartial after she
affirmatively said she thought she could be fair). Nor has Boode shown that the
California Court of Appeal’s decision was based on an unreasonable determination
of the facts. Boode therefore is not entitled to habeas relief on this claim.
2. The district court also analyzed Boode’s claim using a juror misconduct
framework. The district court concluded that a constitutional error occurred
because the prosecution did not meet its burden of disproving prejudice. See
Remmer v. United States, 347 U.S. 227, 229 (1954). We need not reach the merits
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of the constitutional claim because we agree with the district court that the error, if
any, was harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). During the
trial court’s hearing, the juror stated that she had not discussed her observations
with other jurors, and the court instructed her not to do so in the future. The jury
heard witness testimony implicating the defendants. This included compelling
testimony from Jeffery DeTar and Peter Elisary. The jury also learned that
Rodriguez’s sister gave a statement to police consistent with Boode’s and
Rodriguez’s involvement in the murders. The trial court correctly instructed the
jury that it “must decide all questions of fact in this case from evidence received in
this trial and not from any other source.” After twenty-one trial days, the jury
deliberated for only two hours. On this record, Boode has not shown that juror
misconduct, if any, “had substantial and injurious effect or influence in
determining the jury’s verdict.” Id. at 638 (internal quotation marks omitted).
3. Boode also argues that the state trial court denied her the right to due
process by declining to give her recently-appointed counsel more time to prepare
for trial. Boode’s trial counsel had approximately four months to review the record
and prepare for trial. Boode does not identify any Supreme Court authority that
would support this claim. We conclude that any error was harmless under Brecht,
507 U.S. 619. Boode argues that her counsel’s rushed preparation prevented
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counsel from adequately identifying the discrepancies between the prosecution
witnesses’ various prior statements. Boode does not, however, identify any actual
evidentiary discrepancies that her counsel failed to tease out, and the trial court
specifically found that Boode’s counsel “didn’t seem to have any trouble cross-
examining the witnesses.” Boode therefore has failed to show prejudice.1
AFFIRMED.
1
Boode also appears to argue that the trial court prejudiced her right to
present a defense by failing to approve her drug expert’s access to certain evidence
and by failing to fund her drug expert adequately for him to devote sufficient time
to the case. This claim is unexhausted because it appears nowhere in Boode’s
petition for review to the California Supreme Court. The State has not expressly
waived this exhaustion requirement, and therefore the claim is not properly before
us. See 28 U.S.C. § 2254(b)(3).
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