The opinion
FILED
NOT FOR PUBLICATION
SEP 9 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JERRY BROWN, No. 20-16903
Petitioner-Appellant, D.C. No. 4:17-cv-02691-PJH
v.
MEMORANDUM*
RAYMOND MADDEN, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted September 3, 2021**
San Francisco, California
Before: SCHROEDER, RAWLINSON, and BYBEE, Circuit Judges.
Jerry Brown, a California state prisoner, appeals the district court’s denial of
his pro se habeas corpus 28 U.S.C. § 2254 petition. He challenges a conviction on
multiple counts of sex-related offenses, contending that the state trial court’s
*
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).
questioning of Brown and his wife violated Brown’s due process right to a fair trial
under the Fourteenth Amendment.
1. The California Court of Appeal applied California’s contemporaneous
objection rule, holding that Brown’s failure to object to the trial court’s questioning
waived this issue for appeal, and rejecting Brown’s argument that any objection
would have been futile. Its determination was reasonable. The district
court held that Brown’s claim was, therefore, procedurally defaulted under
California law and that this constituted an adequate and independent ground for
rejecting Brown’s petition. See Coleman v. Thompson, 501 U.S. 722, 729 (1991);
Murray v. Schriro, 745 F.3d 984, 1015 (9th Cir. 2014).
2. The district court also correctly ruled that, even if the claim were not
procedurally defaulted, Brown could not show that the state court’s rejection of his
judicial misconduct claim “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); Greene v. Fisher, 565 U.S.
34, 38 (2011). In determining whether there was a denial of due process, the courts
do not look only to whether the trial court committed misconduct, but to whether
the court’s actions “rendered the trial so fundamentally unfair as to violate federal
due process under the United States Constitution.” Duckett v. Godinez, 67 F.3d
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734, 740 (9th Cir. 1995). The state court held that the trial court’s questions did
not violate that standard because the court’s questions were chiefly for the purpose
of clarification, and the judge did not assume the jury's role by determining the
credibility of the witnesses.
The state court’s holding was not in violation of clearly established law.
Brown relies principally on Quercia v. United States, 289 U.S. 466 (1933) to argue
that the trial judge’s conduct amounted to a violation of his due process rights.
There the trial judge took over the jury’s role by assessing the credibility of the
defendant for the jury and telling the jury that the defendant was likely lying. Id. at
472. The Supreme Court held that the judge’s characterization of the defendant
“was of a sort most likely to remain firmly lodged in the memory of the jury and to
excite a prejudice which would preclude a fair and dispassionate consideration of
the evidence.” Id. at 472. This is not such a case. The state appellate court’s
ruling concerning the trial judge’s conduct in this case did not violate clearly
established law.
AFFIRMED.
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