Bell v. Uribe, No. 11-5676, and DeMola, No. 11-56771 (9-5-13) (Tallman with Clifton and Callahan).

The petitioners were on trial for murder. At the state trial, there was one holdout for acquittal. The state court trial judge removed her, a nurse, after repeated warnings, because of her outside research and use of her "expert" opinion as to mental health. The district court granted the petition, finding that the petitioner's jury right was violated by her removal. The 9th reversed the district court's granting of a habeas petition. The 9th found that the state court did not err under AEDPA in upholding the dismissal of a juror -- the lone hold-out for acquittal -- after the juror had committed misconduct for supposedly conducting independent research, and acting as an expert on mental health. The district court had also used the wrong standard in determining whether the state courts had decided the claim on its federal merits. Recent Supreme Court cases hold that if the federal claim is intertwined with the state claim, it can be assumed, unless rebutted, that it was decided.

Petitioner DeMola was a juvenile. The 9th held that there was no Miller violation for mandatory life because the state court had the discretion to give less (25 to life with parole) but did not do so because of the facts. This was not a "mandatory" sentence.

[Editorial note: this mandatory sentence still seems troubling as more would seem required than just an option to sentence to less. The 9th sidestepped whether Miller can be applied retroactively on collateral review, and whether it was procedurally barred, because the sentence was supposedly no "mandatory." More would seem required].