Jose Leon v. Matthew Cate

FILED

NOT FOR PUBLICATION

SEP 22 2015

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSE LUIS LEON, No. 13-55705

Petitioner - Appellant, D.C. No. 3:09-cv-02219-LAB-

WMC

v.

MATTHEW CATE, MEMORANDUM*

Respondent - Appellee.

Appeal from the United States District Court for the Southern District of California Larry A. Burns, District Judge, Presiding

Argued and Submitted September 1, 2015 Pasadena, California

Before: GRABER, RAWLINSON, and WATFORD, Circuit Judges.

Jose Leon appeals from the district court’s judgment denying his 28 U.S.C.

§ 2254 habeas corpus petition. Reviewing the district court’s denial of the petition

de novo, Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011), we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Page 2 of 3 1. Leon contends that his Fourteenth Amendment due process rights were

violated because the state trial court failed to follow California law in accepting the

jury’s verdict and denying his motion for…

MEMORANDUM *

Jose Leon appeals from the district court’s judgment denying his 28 U.S.C. § 2254 habeas corpus petition. Reviewing the district court’s denial of the petition de novo, Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir.2011), we affirm.

1. .Leon contends that his Fourteenth Amendment due process rights were violated because the state trial court failed to follow California law in accepting the jury’s verdict and denying his motion for new trial. See Hicks v. Oklahoma, 447 U.S. 343, 346 , 100 S.Ct. 2227 , 65 L.Ed.2d 175 (1980). To the extent Leon argues that the trial court accepted a less-than-unanimous verdict against him on the gang enhancement, contrary to California law, he is mistaken. The jury returned a verdict, the clerk read it in open court, the jury collectively affirmed it without dissent, and it was recorded. Under California law, the validity of the verdict was not subject to attack at that point unless Leon established that the jury committed prior misconduct in reaching the verdict. See Cal.Penal Code § 1181; People v. Bento, 65 Cal.App.4th 179 , 76 Cal.Rptr.2d 412, 418-20 (1998); People v. Peavey, 126 Cal.App.3d 44 , 178 Cal.Rptr. 520, 522-23…

concurring in the judgment.

I concur in the ruling affirming the denial of habeas relief. I write separately because I do'not rely on California law to support affirmance of the district court’s decision.

On habeas review, compliance with state law is not determinative of the outcome. Indeed, if the state court failed to comply with California law, such failure would not justify habeas relief. See Loftis v. Almager, 704 F.3d 645, 647 (9th Cir.2012) (citation omitted). (“It is axiomatic that habe-as relief lies only for violations of the Constitution, laws, or treaties of the United States; errors of state law will not suffice....”) (citation omitted); see also Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir.2009) (The issue for us, always, is whether the state proceedings satisfied due process; the presence or absence of a state law violation is largely beside the point....) (citation omitted).

In assessing a due process claim under the Antiterrorism and Effective Death Penalty Act of 1996, we evaluate whether the challenged state court decision was so fundamentally flawed that the petitioner was deprived of a fair trial under clearly established federal law. See Holley, 568…