Bruce Armstrong v. DEBBIE ASUNCION, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRUCE ARMSTRONG,
Petitioner-Appellant,
v.
DEBBIE ASUNCION, Warden,
Respondent-Appellee.
No. 20-17192
D.C. No.
1:15-cv-01109-DAD-JDP
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Argued and Submitted November 16, 2021
San Francisco, California
Before: PAEZ, WATFORD, and FRIEDLAND, Circuit Judges.
Bruce Armstrong appeals from the district court’s order denying his petition
for a writ of habeas corpus, in which he challenges the state court’s failure to hold
an evidentiary hearing to explore potential juror bias arising from the Facebook
“friendship” between one of Armstrong’s jurors and a retired deputy district
attorney. We affirm.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
NOV 26 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1. The state court’s decision was neither contrary to, nor involved an
unreasonable application of, clearly established federal law as determined by the
Supreme Court. See 28 U.S.C. § 2254(d)(1). None of the Supreme Court cases on
which Armstrong relies entitled him to an evidentiary hearing. In Smith v. Phillips,
455 U.S. 209 (1982), the Court held that an evidentiary hearing “is sufficient” to
satisfy due process concerns in some circumstances, id. at 218, but it did not define
the circumstances in which an evidentiary hearing is required, much less hold that
an evidentiary hearing is required “every time a claim of juror bias is raised.”
Tracey v. Palmateer, 341 F.3d 1037, 1045 (9th Cir. 2003). As we explained in
Tracey, the holding in Remmer v. United States, 347 U.S. 227 (1954), is limited to
the jury-tampering context, “where the potential effect on the jury is severe.”
Tracey, 341 F.3d at 1044. And McDonough Power Equipment, Inc. v. Greenwood,
464 U.S. 548 (1984), has no bearing on this case because the juror in question did
not answer any voir dire questions falsely. The state court did not unreasonably
apply Smith, Remmer, or McDonough in concluding that an evidentiary hearing
was not required in the circumstances presented here.
2. The state court’s decision was not based on an unreasonable
determination of the facts. See 28 U.S.C. § 2254(d)(2). On this front, Armstrong
does not challenge the soundness of any of the state court’s factual findings. He
argues only that the state court’s fact-finding process was unreasonable because

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the court failed to grant him an evidentiary hearing. That argument merely
rehashes his legal contention that the Constitution required the state court to afford
him an evidentiary hearing, and it fails for the reasons discussed above.
AFFIRMED.

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