Neng Saypao Pha v. Swarthout

FILED

NOT FOR PUBLICATION

AUG 01 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NENG SAYPAO PHA, No. 15-16028

Plaintiff-Appellant, D.C. No. 2:13-cv-01133-MCE-

GGH

v.

GARY SWARTHOUT, WARDEN,

MEMORANDUM*

Defendant-Appellee.

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

Argued and Submitted July 6, 2016 San Francisco, California

Before: BERZON, and N.R. SMITH, Circuit Judges, and ZOUHARY,** District Judge.

The district court did not err in denying Neng Pha habeas relief. The primary

issue on appeal is whether the district court erred in denying Pha’s claim that the state

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. court unreasonably denied him juror information to explore a possible claim of juror

bias, thereby denying him a meaningful evidentiary…

MEMORANDUM **

The district court did not err in denying Neng Pha habeas relief. The primary issue on appeal is whether the district court erred in denying Pha’s claim that the state court unreasonably denied him juror information to explore a possible claim of juror bias, thereby denying him a meaningful evidentiary hearing regarding such bias. We affirm.

1. In a post-trial email from a juror to the prosecutor, the juror complimented him on his trial presentation. The prosecutor shared the email with the court arid defense counsel. Subsequently, defense petitioned for disclosure of the jurors’ addresses and telephone numbers for discovery purposes in anticipation of an eviden-tiary hearing for juror misconduct and/or a motion for a new trial. Pursuant to Cal. Code Civ. Pro. § 237, the state court held a hearing on the petition and, in its discretion, denied the petition. The court determined that the petitioner had not made a prima facie good cause showing of juror misconduct. The trial court specifically found no proof

The California Court of Appeal affirmed, finding that the state court reasonably concluded that the email, while “unusual,” did not suggest the juror improperly…

concurring:

I concur in Paragraph 2 of the memorandum disposition and so in the judgment.