FILED

NOT FOR PUBLICATION NOV 30 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

ALLEN HASSAN, No. 09-17169

Petitioner - Appellant, D.C. No. 2:05-cv-02144-MCE-

DAD

v.

FRED MORAWCZNSKI, MEMORANDUM *

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of California Morrison C. England, District Judge, Presiding

Argued and Submitted November 1, 2010 San Francisco, California

Before: GOULD, IKUTA, Circuit Judges, and MAHAN, District Judge.**

Allen Hassan ('Hassan') appeals the district court's denial of his 28 U.S.C.

y 2254 petition for a writ of habeas corpus challenging his California state court

convictions for obstructing an executive officer, resisting a peace officer, speeding,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable James C. Mahan, United States District Judge for the District of Nevada, sitting by designation. driving without possession of valid registration, and assault on a peace officer. We

have jurisdiction pursuant to 28 U.S.C. y 2253, and we affirm.

There are four certified issues in this appeal. Hassan first argues that

because the California trial court did not give sua sponte a special unanimity

instruction, Hassan was denied his right to a unanimous jury. The Appellate

Department's conclusion--in the last reasoned decision in this matter--that there

was no error in the omission of the instruction is a binding interpretation of state

law. See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (per curiam). Further, the

Supreme Court 'has never held jury unanimity to be a requisite of due process of

law.' Johnson v. Louisiana, 406 U.S. 356, 359 (1972). Thus, the state court's

rejection of Hassan's claim was not contrary to, nor an unreasonable application of,

clearly established federal law as determined by the Supreme Court. See 28 U.S.C.

y 2254(d).

Hassan next contends that the jury instructions on assault, in light of expert

testimony and argument by the prosecutor, violated his due process rights, and that

additional clarifying instructions should have been given. However, Hassan has

not met his 'heavy' burden in these circumstances, Henderson v. Kibbe, 431 U.S.

145, 155 (1977), to show that the omission 'so infected the entire trial that the

resulting conviction violates due process.' Cupp v. Naughten, 414 U.S. 141, 147

2 (1973). The judge gave instructions on assault in accordance with California law,

and further instructed the jury that, 'If anything concerning the law said by the

attorneys in their arguments or at any other time during the trial conflicts with my

instructions on the law, you must follow my instructions.' These instructions,

which we presume were followed, Fields v. Brown, 503 F.3d 755, 782 (9th Cir.

2007), show that any potential confusion from testimony or argument did not so

infect the outcome of the trial and resulting conviction as to violate due process.

The state court's rejection of this claim was not contrary to, nor an unreasonable

application of, clearly established federal law.

Third, Hassan claims that misconduct by the prosecutor in closing argument

violated his due process rights. This claim also fails because the prosecutor's

argument did not so infect the trial with unfairness as to deprive Hassan of due

process. See Hein v. Sullivan, 601 F.3d 897, 912 (9th Cir. 2010) (quoting Darden

v. Wainwright, 477 U.S. 168, 181 (1986)). The argument that is the subject of this

claim was an unfinished, ambiguous remarµ at the end of the closing statement that

was not emphasized by the prosecutor. Furthermore, Hassan cannot show he

suffered prejudice from any improper suggestion by the prosecutor on assault

because the jury instructions cured any confusion.

3 Finally, Hassan argues that his trial counsel rendered ineffective assistance

in a number of different respects, in violation of his Sixth Amendment rights. The

Appellate Department, citing Stricµland v. Washington, 466 U.S. 668 (1984),

determined that counsel's representation did not fall below an objective standard of

reasonableness. Trial counsel's failure to object at several junctures in the

testimony was not unreasonable, as some of the testimony was arguably

admissible, and counsel might have elected not to object for acceptable or strategic

reasons. Trial counsel's decision not to introduce evidence of prior complaints

against the officer in exchange for the prosecutor's promise not to introduce

evidence of prior incidents involving Hassan was a reasonable tactical choice.

Counsel's decision not to introduce additional expert testimony was similarly

reasonable given that several experts had already testified on the subjects in

question. On both these issues we must give deference to the proper scope of

strategic decision-maµing by counsel. See Stricµland, 466 U.S. at 690-91;

Rompilla v. Beard, 545 U.S. 374, 380-81 (2005). As to each of these claims of

ineffective assistance of counsel, the state court did not unreasonably apply clearly

established federal law in determining that the performance of Hassan's counsel

met an objective standard of reasonableness.

4 Although the dissent points to troubling issues in the record, we are bound

by AEDPA, which establishes a 'highly deferential standard for evaluating state-

court rulings.' Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal

quotation and marµs omitted). In arguing that the state court's rejection of

Hassan's due process claim was contrary to or an unreasonable application of

Supreme Court law, the dissent points only to general due process standards. But

where a Supreme Court case sets 'a general standard, a state court has even more

latitude to reasonably determine that a defendant has not satisfied that standard.'

Knowles v. Mirzayance, 129 S. Ct. 1411, 1419 (2009). Under this deferential

standard of review, the state court's decision was neither contrary to nor an

unreasonable application of clearly established federal law. 28 U.S.C.

y 2254(d)(1).

AFFIRMED.

5

FILED

Allen Hassan v. Fred Morawcznsµi, No. 09-17169 NOV 30 2010

MOLLY C. DWYER, CLERK

GOULD, Circuit Judge, dissenting. U.S . CO U RT OF AP PE A LS

Allen Hassan was convicted by a jury in California state court of obstructing

an executive officer, resisting a peace officer, speeding, driving without possession

of valid registration, and assault on a peace officer. The convictions arose out of

an altercation between Hassan and Officer Cooney following a traffic stop, the

details of which were contested at trial. The prosecutor posited during closing

argument that the jury could convict Hassan of assault based on any one of three

discrete acts by Hassan that were included in Officer Cooney's version of events:

(a) grabbing the officer's badge, (b) swinging at the officer as Hassan broµe free

from the officer's hold, or (c) 'spearing' the officer with Hassan's shoulder while

in handcuffs.

Although there is no clearly established right in Supreme Court precedent to

jury unanimity in a state prosecution, see Johnson v. Louisiana, 406 U.S. 356, 359

(1972), a prisoner may also challenge a flawed instruction through a writ of habeas

corpus on the theory that it 'so infected the entire trial that the resulting conviction

violates due process.' Cupp v. Naughten, 414 U.S. 141, 147 (1973). We must

inquire whether there is a reasonable liµelihood that the jury applied the challenged

instruction in a way that violates the Constitution. Estelle v. McGuire, 502 U.S.

62, 72 (1991). The omission of a clarifying jury instruction in this case violated Hassan's

due process right to fundamental fairness in his trial because it permitted a

conviction for assault without agreement by even a simple majority of the jury on

the act constituting assault. Under the prosecutor's theory of the case as presented

to the jury, it is entirely plausible that the jurors split three ways, with several

jurors believing Hassan committed assault only by grabbing the officer's badge,

and not otherwise, several jurors believing Hassan committed assault only by

swinging his arms to breaµ the officer's hold, and not otherwise, and several jurors

believing Hassan committed assault only by 'spearing' the officer with his

shoulder, and not otherwise. In the serious business of a criminal trial, there

should be more certainty than this. While all twelve jurors need not agree on

'which of several possible sets of underlying brute facts maµe up a particular

element' of an offense, Richardson v. United States, 526 U.S. 813, 817 (1999), the

real possibility of a lacµ of agreement on the very act constituting the crime of

assault violated Hassan's right to a fair trial under the Due Process Clause. I would

therefore reverse and grant relief.

It's also worth stepping bacµ a bit to consider how unusual is this case. A

doctor returning home from a basµetball game at half-time to attend to matters for

a patient is stopped for speeding. One thing leads to another, and there is not only

2 a speeding ticµet but potentially reciprocal assaults and finally criminal conviction

of the doctor. Add to this mix that the doctor was a United States citizen, had an

Arab name, and was stopped for his speeding ticµet in January 2002, not long after

September 11, 2001. It is also curious that in this particular case of conflicting

testimony between traffic officer and citizen, the normal video machinery of the

police car was said to have malfunctioned so there was no video record that might

have answered the conflicts between the testimony of the officer and of Hassan. In

such a context, we as appellate judges can never µnow precisely what occurred

between the police officer and Hassan, and why a seemingly routine traffic stop

escalated to such a confrontation including criminal charges. All of that is squarely

in the province of the jury. However, we are in a position to ensure that Hassan

received a fair trial, and hence my dissent. In the unusual circumstances of this

case, including the prosecutor's argument that three separate assaults occurred,

each of which is adequately separated in time and space, one cannot be confident

that even a simple majority of the jury convicted Hassan of one of the specified

assaults. In my view, that is fundamentally unfair, and a violation of due process

under established principles and Court precedent.

3