Opinion
No. 07-56165.
Argued and Submitted February 5, 2010.
Filed April 5, 2010.
Vivian Fu, San Francisco, CA, for Petitioner-Appellant.
Roy C. Rivas, Jr., pro se.
Atty. Gen. Cas, Esquire, Lise S. Jacobson, AGCA-Office of the California Attorney General, San Diego, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Southern District of California, Napoleon A. Jones, District Judge, Presiding. D.C. No. CV-04-01154-J(JMA).
Before: SCHROEDER, FISHER and N.R. SMITH, Circuit Judges.
ORDER WITHDRAWING MEMORANDUM DISPOSITION AND DENYING PETITION FOR REHEARING AND REHEARING EN BANC
The memorandum disposition filed February 19, 2010 is withdrawn. A superseding memorandum disposition is being filed concurrently with this order.
The panel has voted to deny the petition for panel rehearing and to deny the petition for rehearing en banc.
The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed.R.App.P. 35.
The petition for panel rehearing and the petition for rehearing en banc are denied. The panel will not entertain any additional petitions for rehearing or rehearing en banc.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36 3.
Roy Rivas, a California state prisoner, appeals the district court's denial of his 28 U.S.C. § 2254 habeas petition. Rivas argues he was denied a fair trial because the jury foreman lied during voir dire. He further argues he was deprived of a peremptory challenge because of the untruthful answers.
The California Court of Appeal did not unreasonably determine that the jury foreman, Rudy Medina, answered all questions on voir dire truthfully. See 28 U.S.C. § 2254(d)(2). Medina himself brought the prior relationship with Rivas' mother to the trial court's attention; the relationship had been brief and ended over twenty years before the trial. The court reasonably determined that Medina did not lie and therefore Rivas had failed to establish implied bias. See Fields v. Brown, 503 F.3d 755, 773 (9th Cir. 2007) (en banc). Rivas had a two day evidentiary hearing in California Superior Court to establish that Medina was biased and failed to do so. See id.
Rivas also claims that Medina's untruthful answers deprived him of a peremptory challenge. Because a state court's good-faith deprivation of a peremptory challenge "is not a matter of federal constitutional concern," we reject this claim as well. Rivera v. Illinois, ___ U.S. ___, 129 S.Ct. 1446, 1453, 173 L.Ed.2d 320 (2009).
In reaching this result, we assume proper jurisdiction. Because the petition lacks merit, we need not address the State's argument that Evans v. Chavis, 546 U.S. 189, 126 S.Ct. 846, 163 L.Ed.2d 684 (2006), renders Rivas' petition untimely.