FILED

NOT FOR PUBLICATION

JUN 23 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANTHONY HAUBE, No. 19-36005

Petitioner-Appellant, D.C. No. 3:17-cv-00170-JKS

v.

MEMORANDUM*

EARL L. HOUSER,

Respondent-Appellee.

Appeal from the United States District Court for the District of Alaska James K. Singleton, District Judge, Presiding

Submitted June 16, 2021** Anchorage, Alaska

Before: RAWLINSON, HURWITZ, and R. NELSON, Circuit Judges.

Petitioner Anthony Haube (Haube) appeals the district court’s denial of his

habeas petition asserting that the state trial judge coerced a juror’s consent to the

guilty verdict. On habeas review, we may grant relief only if the state court

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). decision was contrary to or involved an unreasonable application of clearly

established federal law. See Parker v. Small, 665 F.3d 1143, 1147 (9th Cir. 2011)

(per curiam). Federal law is comprised of holdings of the United States Supreme

Court. See id.

“Clearly established federal law provides that any criminal defendant being

tried by a jury is entitled to the uncoerced verdict of that body. . . .” Id. (quoting

Lowenfield v. Phelps, 484 U.S. 231, 241 (1988)) (alterations and internal quotation

marks omitted). However, the Alaska Court of Appeals’ conclusion that the trial

judge’s post-verdict questioning did not coerce Juror B’s vote was not contrary to

or an unreasonable application of Lowenfield. See Haube v. State, No. A-10047,

2010 WL 2871078 at *4-6 (Alaska Ct. App. Jul. 21, 2010). Polling the jury is a

permissible method of ensuring unanimity. See United States v. McCaleb, 552

F.3d 1053, 1058 (9th Cir. 2009) (discussing Jenkins v. United States, 380 U.S. 445

(1965)); see also Fed. R. Crim. P. 31(d). Where, as here, an issue is raised

regarding a juror’s vote, the trial judge may permissibly clarify that vote. See

McCaleb, 552 F.3d at 1058.

There is a distinction between obtaining clarity and coercion. See id.

(distinguishing Jenkins). Importantly, the record reflects that Juror B never

disavowed the guilty verdict or her vote in favor of that verdict. Rather, Juror B

2 consistently expressed that she would have been more comfortable with the verdict

if Haube had clarified “what he was doing” during the relevant time period. The

trial judge carefully explained that Haube’s decision not to testify could not be

used against him, and Juror B never stated that she voted to convict Haube due to

his failure to testify.

Haube has not identified any Supreme Court case holding that a trial court’s

clarification of uncertainty in a jury verdict constitutes coercion. See Knowles v.

Mirzayance, 556 U.S. 111, 122 (2009) (“[T]his Court has held on numerous

occasions that it is not an unreasonable application of clearly established Federal

law for a state court to decline to apply a specific legal rule that has not been

squarely established by this Court. . . .”) (citations and internal quotation marks

omitted).

Haube also failed to demonstrate that the Alaska Court of Appeals made an

unreasonable factual determination. Haube contends that the trial judge neglected

to consider the “context” of Juror B’s response. However, that more than one

interpretation of the record exists does not render the interpretation adopted by the

state unreasonable. See Wood v. Allen, 558 U.S. 290, 301 (2010).

PETITION DENIED.

3