NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 26 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT BRUCE ARMSTRONG, No. 20-17192

Petitioner-Appellant, D.C. No.

1:15-cv-01109-DAD-JDP v. DEBBIE ASUNCION, Warden, MEMORANDUM*

Respondent-Appellee.

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.

Page 2 of 3

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

Page 3 of 3 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.