Walton v. Roe

Full title: Kevin Lavelle WALTON, Petitioner-Appellant, v. Ernie ROE, Warden, et al.…

Court: United States Court of Appeals, Ninth Circuit

Date published: Jul 30, 2002

43 F. App'x 131 (9th Cir. 2002)

Opinion

43 Fed.Appx. 131 (9th Cir. 2002) Kevin Lavelle WALTON, Petitioner-Appellant, v. Ernie ROE, Warden, et al., Respondents-Appellees. No. 01-55925. D.C. No. CV-98-07206-R(RNB). United States Court of Appeals, Ninth Circuit. July 30, 2002

Submitted July 22, 2002 ^*.

* This panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, we deny Walton's request for oral argument.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding.

Before BROWNING, KOZINSKI, and BERZON, Circuit Judges.

MEMORANDUM ^**

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.

California state prisoner Kevin Lavelle Walton appeals pro se the dismissal of his 28 U.S.C. § 2254 petition, challenging his 1995 jury trial conviction for second degree murder with use of a firearm. We have jurisdiction pursuant to 28 U.S.C. § 2253. Reviewing de novo, Miles v. Prunty, 187 F.3d 1104, 1105 (9th Cir.1999), we affirm.

Walton contends that his appellate counsel was ineffective for filing a no-issues brief, pursuant to People v. Wende, 25 Cal.3d 436, 158 Cal.Rptr. 839, 600 P.2d 1071 (1979), because counsel did not raise on direct appeal the issue of whether the trial court erred by failing to conduct an evidentiary hearing regarding possible juror

Page 132.

bias or misconduct. Based on our reading of the juror's letter to Walton and the attorney's affidavit relating the juror's statements, we conclude that the California state courts would not have allowed an evidentiary hearing regarding possible juror bias or misconduct. See People v. Hedgecock, 51 Cal.3d 395, 272 Cal.Rptr. 803, 795 P.2d 1260, 1272 (1990) (holding that a trial court may conduct an evidentiary hearing regarding juror misconduct only if it is "necessary to resolve material, disputed issues of fact"); see also Cal. Evid.Code § 1150(a) (prohibiting evidence, upon an inquiry as to the validity of a verdict, "to show the effect of [any] statement, conduct, condition, or event upon a juror"). In this case, appellate counsel was not ineffective for failing to raise meritless issues on appeal. Turner v. Calderon, 281 F.3d 851, 872 (9th Cir.2002).

Therefore, Walton has not demonstrated that the California state courts' decision rejecting his ineffective assistance of appellate counsel claim was contrary to, or involved an unreasonable application, of Supreme Court precedent. See 28 U.S.C. § 2254(d); Smith v. Robbins, 528 U.S. 259, 285, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000) (holding that the proper standard for evaluating claim that appellate counsel was ineffective in neglecting to file a merits brief is whether counsel's performance was deficient, and whether it prejudiced his defense).

AFFIRMED.