Fossinger

Fossinger v. Roe

Good Law
29 F. App'x 453
United States Court of Appeals for the Ninth CircuitJanuary 3, 2002No. 01-55454; D.C. No. CV-97-02114-GHKCalifornia592 words

Opinion

Lead Opinion

MEMORANDUM **

Danny Ray Fossinger (“Fossinger”), a California state prisoner, appeals the district court’s denial of his petition for writ of habeas corpus. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.

We review the district court’s denial of a § 2254 habeas petition de novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir.2000). Fossinger argues that the state trial judge made improper comments on the evidence to a deadlocked jury.

The California Court of Appeal rejected this claim, on Fossinger’s direct appeal of his state conviction.

Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214, Fossinger is entitled to habeas relief only if the decision of the California Court of Appeal “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254 (d)(1).

A state trial judge violates the federal Constitution if the judge makes comments that effectively deny a criminal defendant a trial by jury. See Gonsior v. Craven, 449 F.2d 20, 21 (9th Cir.1971). The trial judge can give comments and call the…

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