Manuel Lopes v. Marion Spearman

MEMORANDUM

State prisoner Manuel D. Lopes appeals from the district court’s denial of his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 . We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253(a), and we affirm.

Lopes contends that his absence at the reading of the verdict and the jury polling violated his federal due process right to be present at all critical stages of trial and resulted in prejudicial error. We review the denial of habeas relief de novo. Murdaugh v. Ryan, 724 F.3d 1104, 1113 (9th Cir.2013).

We will deny Lopes’s habeas petition unless the decision of the California Court of Appeal “(1) ... was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254 (d).

Assuming a constitutional right to be present existed, the California Court of Appeal found that Lopes waived the right by his voluntary absence at that stage of his trial. It is clearly established federal law that a defendant may waive his…