Mark A. Koch, Petitioner-appellant, v. Terry Stewart,* Director of Arizonadepartment of Corrections; Grant Woods, Attorneygeneral, Respondents-appellees, 99 F.3d 1146 (9th Cir. 1996)
Annotate this CaseBefore: O'SCANNLAIN and LEAVY, Circuit Judges, and HUFF,*** District Judge.
MEMORANDUM****
Arizona state prisoner Mark A. Koch ("Koch") appeals from the district court's dismissal of his 28 U.S.C. § 2254 habeas corpus petition. Koch argues, inter alia, that the district court erred in concluding that he had procedurally defaulted under state law on ten of the issues presented, and in its finding of harmless error with respect to the remaining two issues properly presented for review. We affirm.
Except with respect to Koch's preserved claims concerning the trial court's ex parte communication with the jury and the "no death penalty" jury instruction, Koch procedurally defaulted under Arizona state law on all of his other claims. We agree with the district court and the Arizona courts that Koch failed either to raise them on direct appeal or to present them in a timely fashion in his Rule 32 petitions. Arizona R.Crim.P.Rule 32.2; Murray v. Carrier, 477 U.S. 478, 486 (1986); Johnson v. Lewis, 929 F.2d 460, 463 (9th Cir. 1991). Koch failed to show cause or prejudice, or to establish any miscarriage of justice requiring us to consider his claims on the merits in spite of his procedural defaults. Hughes v. Idaho State Board of Corrections, 800 F.2d 905, 906-07 (9th Cir. 1986).
We find no error in the district court's conclusion that Koch's two preserved claims do not warrant collateral relief. Neither the state trial court's ex parte communication with the jury nor its "no death penalty" jury instruction had "substantial and injurious effect or influence in determining the jury's verdict." Ortiz-Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (citations omitted).
Having found no merit to any of Koch's remaining arguments, the decision appealed from is
AFFIRMED.
Terry Stewart is substituted as appellee in place of Samuel A. Lewis pursuant to Ninth Cir.R. 27-7/Appendix A, General Orders for the United States Court of Appeals
The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4
The Honorable Marilyn L. Huff, United States District Judge for the Southern District of California, sitting by designation
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3
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