FILED
NOT FOR PUBLICATION
JUL 27 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GEORGE BERARDI, No. 15-55881
Petitioner-Appellant, D.C. No.
3:13-cv-01598-BTM-BLM
v.
DANIEL PARAMO, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, Chief Judge, Presiding
Argued and Submitted July 11, 2017
Pasadena, California
Before: REINHARDT, FERNANDEZ, and WARDLAW, Circuit Judges.
George Berardi (“Berardi”) appeals the district court’s denial of his federal
habeas petition. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we
affirm. Our review is governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. The California Court of Appeal reasonably determined that Juror Nine was
not biased. A defendant has the right to “a jury capable and willing to decide the
case solely on the evidence.” Smith v. Phillips, 455 U.S. 209, 217 (1982). Juror
Nine’s comments to his fellow jurors during deliberations did not show that he was
racially biased and therefore unable to decide the case on the evidence presented.
Berardi focuses on Juror Nine’s statement to other jurors that, if the races of
Berardi and the victim were switched (Berardi is white and the victim was African-
American), they would have convicted Berardi immediately. However, the
California Court of Appeal reasonably interpreted that comment as reflecting not
racial bias but rather Juror Nine’s frustration that deliberations continued for
several days despite what he believed was strong evidence in favor of conviction.
Indeed, Juror Nine’s comment was unlike those in other cases that strongly
indicated racial bias. See, e.g., Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 862,
869–70 (2017).
Further, the California Court of Appeal reasonably determined that Berardi
was given sufficient opportunity to prove Juror Nine’s bias. The United States
Supreme Court has established that “the remedy for allegations of juror partiality is
a hearing in which the defendant has the opportunity to prove actual bias.” Smith,
455 U.S. at 215. The California Superior Court examined six of the twelve jurors,
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with counsel present, using questions submitted by the parties. That provided an
adequate opportunity for Berardi to prove bias. See Hedlund v. Ryan, 854 F.3d
557, 574 (9th Cir. 2017) (finding a hearing on juror impartiality sufficient where
“the fact-finding process [was] objective and reasonably explore[d] the issues
presented” (quoting Dyer v. Calderon, 151 F.3d 970, 975 (9th Cir. 1988))).
2. We grant Berardi’s motion to expand the Certificate of Appealability
(“COA”) to include a second issue: whether his state-court appellate counsel was
ineffective. See Ninth Cir. R. 22-1(e) (when a petitioner briefs an uncertified issue,
we construe the briefing as a motion to expand the COA). The district court found
that this claim was untimely and that it fails on the merits. Because “jurists of
reason” might find those conclusions “debatable,” we grant the motion. See Slack
v. McDaniel, 529 U.S. 473, 484 (2000).
However, we affirm the district court’s denial of relief, finding that even if
the claim was timely, it fails on the merits. The Supreme Court of California did
not provide any reasoning when it rejected Berardi’s ineffective-assistance claim,
but a review of the record shows that its decision was reasonable. See Pirtle v.
Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (when a state court does not provide
a reasoned decision, we must “independently review the record to determine
whether the state court clearly erred in its application of Supreme Court law” ).
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Under Strickland v. Washington, 466 U.S. 668 (1984), counsel is ineffective
when his performance fell below an objective standard of reasonableness and his
deficient performance prejudiced the defendant. Id. at 687–88; see also Smith v.
Robbins, 528 U.S. 259, 285 (2000) (applying the Strickland standard to appellate
counsel). To determine whether counsel was ineffective for failing to raise a claim
on appeal, we must look to the merits of the claim. See Woods v. Etherton, 136 S.
Ct. 1149, 1152–53 (2016); Moormann v. Ryan, 628 F.3d 1102, 1106–07 (9th Cir.
2010).
The Supreme Court of California could have reasonably determined that
Berardi did not have a viable claim on appeal that his right to testify was violated.
After a post-trial evidentiary hearing, the California Superior Court found that
though Berardi may have wanted to testify, he ultimately acquiesced in his
attorney’s advice not to do so. The trial court concluded that Berardi did not make
an unequivocal demand to testify, either to his attorney or to the court. We
presume that those findings of fact are correct. See 28 U.S.C. § 2254(e)(1);
Miller-El v. Cockrell, 537 U.S. 322, 341–42 (2003). Under both Ninth Circuit and
California precedent, those facts were insufficient to support a claim that Berardi’s
right to testify was violated. See United States v. Edwards, 897 F.2d 445, 446–47
(9th Cir. 1990) (holding that there was no violation where the defendant asked his
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attorney to testify but his attorney misunderstood the request and did not call him
to the stand); People v. Blye, 233 Cal. App. 2d 143, 149 (1965) (holding that a
defendant’s right to testify is violated only if the record “show[s] affirmatively that
the defendant effectively demanded the right to take the stand against the advice of
his attorney” but was not allowed to do so).
To the extent that Berardi argues that his appellate counsel should have
raised a slightly different claim—an ineffective-assistance claim based on trial
counsel’s failure to call Berardi to the stand—we find that this claim was also
likely to fail. See United States v. Nohara, 3 F.3d 1239, 1243–44 (9th Cir. 1993)
(holding that trial counsel was not ineffective even though he waived the
defendant’s right to testify without informing him).
AFFIRMED.
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