FILED

NOT FOR PUBLICATION

JUL 12 2017

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ERIC PRESLEY, No. 15-35420

Petitioner-Appellant, D.C. No. 6:12-cv-02169- PK

v.

MEMORANDUM*

JEFF PREMO, Superintendent,

Respondent-Appellee.

Appeal from the United States District Court for the District of Oregon Michael W. Mosman, Chief District Judge, Presiding

Submitted June 8, 2017** Portland, Oregon

Before: TASHIMA, GOULD, and RAWLINSON, Circuit Judges.

Eric Presley was indicted for his role in separate robberies of the Thatcher

Tavern and the Wilshire Tavern. Presley moved to sever the charges stemming

from these two robberies. The state trial judge denied the motion. Presley then

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)(C). waived his right to a jury trial on the Thatcher Tavern charges, but requested a jury

as to the Wilshire Tavern charges.

On the morning the Wilshire Tavern trial was set to begin, Presley requested

new counsel, citing a conflict of interest with his current attorney. After a colloquy

with Presley, the trial judge denied his request. Shortly thereafter, however,

Presley’s counsel renewed his request to sever the charges, this time taking issue

with statements made by the trial judge during the colloquy. The trial judge

reversed his earlier decision and agreed to sever the cases: another judge would

hear the Thatcher Tavern case, while he would continue to oversee the Wilshire

Tavern trial. A jury convicted Presley on the Wilshire Tavern charges and he pled

no contest to two of the Thatcher Tavern charges. Presley was sentenced to 340

months’ incarceration. The Oregon Court of Appeals denied Presley’s direct

appeal and the Oregon Supreme Court denied review.

After unsuccessfully seeking post-conviction relief in Oregon state courts,

Presley filed the instant petition pursuant to 28 U.S.C. § 2254. The district court

denied Presley’s petition. This appeal followed. A Certificate of Appealability

was granted on the issue of “whether the trial judge’s failure to recuse himself

despite the appearance of judicial bias violated [Presley’s] due process rights.”

2 Assuming, without deciding, that Presley’s § 2254 petition adequately raised

a claim of judicial bias and, assuming further, that this claim was not procedurally

barred, see Lambrix v. Singletary, 520 U.S. 518, 525 (1997) (noting that a

procedural bar issue need not always be resolved first), we consider the merits of

his claim. We have jurisdiction pursuant to 28 U.S.C. § 2253(a) and we affirm.

In his state post-conviction petition, Presley argued he was denied due

process when he was not afforded an impartial judge. The Oregon Circuit Court

rejected his argument as insufficiently supported by evidence, a decision affirmed

on appeal.

Under the Antiterrorism and Effective Death Penalty Act of 1996, where, as

here, “a state court has adjudicated a claim on the merits, we may grant relief only

if the adjudication of that claim ‘(1) resulted in a decision that 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) resulted in a decision

that was based on an unreasonable determination of the facts in light of the

evidence presented in the state court proceeding.’” Hurles v. Ryan, 752 F.3d 768,

777 (9th Cir. 2014) (quoting 28 U.S.C. § 2254(d)).

Presley’s judicial bias claim is premised on three purportedly improper

statements by the trial judge. The first statement came during a pre-trial settlement

3 conference, wherein the trial judge asked whether Presley would accept a plea offer

of 180 months’ incarceration. The second statement came in response to Presley’s

motion to substitute counsel. Presley sought new counsel because his current

attorney had an alleged conflict of interest: engaging in plea negotiations despite

Presley’s stated preference for proceeding to trial. In denying the motion, the trial

judge explained that he had encouraged plea negotiations because the evidence

against Presley, including DNA evidence, was relatively strong and that a

conviction could result in a life sentence. The third statement came in response to

Presley’s renewed motion to sever. The trial judge again referenced the DNA

evidence, of which he learned from the parties’ briefing. Out of an abundance of

caution, however, the judge granted Presley’s renewed motion to sever.

According to Presley, these statements revealed a biased judge who had

made a “fixed, anticipatory judgment” as to his guilt, and who had become “so

enmeshed” in the parties’ plea negotiations that he was no longer a “neutral

arbiter.” Presley argued that the presence of a biased judge is a structural error

that demands reversal, even absent a showing of prejudice.

Presley’s argument fails for two reasons. First, he fails to show how the

Oregon Circuit Court’s decision was “contrary to” or otherwise “involved an

unreasonable application of,” a controlling Supreme Court precedent. To be sure,

4 Presley cites for support the Supreme Court’s decision in Bracy v. Gramley, 520

U.S. 899, 904 (1997). But Bracy merely reiterates the broad rule that a biased

judge may well give rise to a due process violation. See id. at 904–05. And its

facts – which involved the bribery of a judge, id. at 901–04 – are far afield from

those at issue here. The AEDPA standard is a demanding one and Presley’s

reliance on Bracy fails to satisfy it.

Second, we have previously considered – and rejected – an analogous

§ 2254 petition that raised a claim of judicial bias premised on facts more

egregious than those at issue here. In Crater v. Galaza, 491 F.3d 1119, 1131 (9th

Cir. 2007), petitioner Crater alleged bias where a trial judge: (1) stated that Crater

would likely be found guilty; (2) encouraged Crater to accept the government’s

plea offer because it reflected a “major concession”; (3) explained that he had

“already heard all of the witnesses” and knew “everything that happened that

night” such that he was “real sure that [Crater was] going to be convicted of all of

those robberies . . . [and] of shooting the first robbery victim”; and (4) opined that

“[a] jury is not going to like [Crater]” and, therefore, that Crater “will die in

prison” should he go to trial. Id. at 1130–31. After reviewing the cases in which

the Supreme Court had found judicial bias, we affirmed the state court’s denial of

Crater’s claim. Id. at 1131–32. Because the statements in Crater were more

5 egregious than those now challenged by Presley, we must reach the same

conclusion here.

The district court’s denial of Presley’s habeas petition is

AFFIRMED.

6

FILED

Presley v. Premo, Case No. 15-35420

JUL 12 2017

Rawlinson, Circuit Judge, concurring:

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in the result.