Antonio Tolbert v. Jan Trombley

Filing

OPINION filed : AFFIRMED, decision not for publication pursuant to local rule 28(g). Boyce F. Martin , Jr., Circuit Judge; Jeffrey S. Sutton, Circuit Judge (AUTHORING), and James L. Graham, U.S. District Judge for the Southern District of Ohio, sitting by designation.

Case: 09-2457 Document: 006110960770 Filed: 05/18/2011 Page: 1

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 11a0331n.06
No. 09-2457
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

FILED
ANTONIO TOLBERT,
Petitioner-Appellant,
v.
JAN TROMBLEY,
Respondent-Appellee.

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May 18, 2011
LEONARD GREEN, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF MICHIGAN

Before: MARTIN and SUTTON, Circuit Judges; GRAHAM, District Judge.*

SUTTON, Circuit Judge. When the attorney for Antonio Tolbert gave his closing argument
in this drug-distribution case, he met resistance from an unlikely source: the jury. Juror four “looked
right at [him],” R.13-5 at 195, and said, “[D]on’t insult my intelligence,” People v. Tolbert, No.
262792, 2006 WL 2924577, at *4 (Mich. Ct. App. Oct. 12, 2006) (per curiam). Juror eight gave
defense counsel “a real dirty look,” R.13-5 at 196, and said, “I don’t want to hear that crap. Blah,
blah, blah,” Tolbert, 2006 WL 2924577, at *4.

In certain types of Michigan felony trials, including this one, fourteen jurors hear the
evidence, after which the court randomly excuses two of the fourteen as alternates prior to jury
deliberations. Mich. Comp. Laws § 768.18(1). Tolbert’s counsel moved to excuse jurors four and
*

The Honorable James L. Graham, Senior United States District Judge for the Southern
District of Ohio, sitting by designation.

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Tolbert v. Trombley
eight as alternates, but the trial court denied the motion, analogizing the jurors’ comments to hostile
body language conveying the same message. The court randomly selected the two alternates, and
jurors four and eight served on the jury that convicted Tolbert.

The Michigan Court of Appeals affirmed his conviction, and the Michigan Supreme Court
denied leave to appeal. People v. Tolbert, 728 N.W.2d 450 (Mich. 2007). The federal district court
rejected Tolbert’s pro se habeas petition and denied a certificate of appealability. We granted a
certificate on Tolbert’s claim that the trial court should have removed jurors four and eight.

Congress has cabined the availability of federal habeas corpus relief “with respect to any
claim” the state courts “adjudicated on the merits.” 28 U.S.C. § 2254(d). We have the authority to
issue habeas relief as to such claims only if the state courts’ adjudication “(1) resulted in a decision
that was contrary to, or involved an unreasonable application of” Supreme Court precedent or
“(2) resulted in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” Id. Neither party disputes that § 2254(d)
applies to Tolbert’s claim.

Tolbert maintains that the trial court denied him “the right to a . . . trial[] by an impartial jury”
and “deprive[d] [him] of . . . liberty . . . without due process of law” when it declined to excuse
jurors four and eight. U.S. Const. amends. VI, XIV. In denying this claim, the state court reasoned
that the jurors’ comments “were merely a ‘juror thought process’ that was verbalized during trial,”
not that different from expressive body language and the visual, as opposed to verbal, cues that come

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with it. Tolbert, 2006 WL 2924577, at *4. In the state court’s opinion, the jury instruction to
consider only properly admitted evidence mitigated any possible harm, which in any event was
insignificant given Tolbert’s failure to allege that outside influences affected the verdict. Id. In the
final analysis, the court concluded, “[t]he jurors’ comments may have been a break in the trial court’s
decorum, but they did not deny defendant a fair trial.” Id.

The short answer to this claim is that the Supreme Court has not dealt with anything like it
before. We are not aware of a case in which the Court has construed the Constitution to prohibit a
juror who speaks out once during the trial from continuing to sit on the jury. Neither the parties nor
the lower court have identified any such case either. We could stop there. “[I]t is not ‘an
unreasonable application of clearly established Federal law’ for a state court to decline to apply a
specific legal rule that has not been squarely established by th[e Supreme] Court.” Knowles v.
Mirzayance, 556 U.S. __, 129 S. Ct. 1411, 1419 (2009).

Even if we construe Tolbert’s claim more broadly, as we sometimes do for pro se litigants,
we cannot envision a cognizable basis for granting habeas relief. To the extent Tolbert means to
argue that extra-record evidence infected the jury’s deliberations, nothing supports the argument.
The Supreme Court has confronted allegations of juror bias resulting from a litany of outside
influences: bribes, Remmer v. United States, 347 U.S. 227 (1954), prejudicial comments by the
bailiff, Parker v. Gladden, 385 U.S. 363 (1966) (per curiam), pre-trial publicity, Sheppard v.
Maxwell, 384 U.S. 333 (1966), requests for a job with the District Attorney’s office by a juror, Smith
v. Phillips, 455 U.S. 209 (1982), and others, see, e.g., Turner v. Louisiana, 379 U.S. 466 (1965);
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Leonard v. United States, 378 U.S. 544 (1964) (per curiam). Tolbert’s case, however, falls into none
of these categories. He does not identify any outside influence that affected jurors four and eight,
leaving his case at least one step removed from this line of authority.

To the extent Tolbert means to argue that his case involves “threats to the fundamental
fairness of a criminal trial posed by conditions in (or originating in) the courtroom,” Carey v.
Musladin, 549 U.S. 70, 82 (2006) (Souter, J., concurring), that claim also goes nowhere. A
defendant’s trial may be poisoned by a mob, hungry for a conviction. See Moore v. Dempsey, 261
U.S. 86 (1923). Or it may be overcome by distractions from news cameras and reporters
interviewing trial participants. See Sheppard, 384 U.S. at 355; Estes v. Texas, 381 U.S. 532, 546–51
(1965). Constitutional problems also may arise where a “courtroom arrangement” presents “‘an
unacceptable risk . . . of impermissible factors coming into play,’” Holbrook v. Flynn, 475 U.S. 560,
570 (1986), such as where the court “compel[s] [a defendant] to wear identifiable prison clothing
at his trial,” Estelle v. Williams, 425 U.S. 501, 502 (1976), or binds and gags a defendant, see Illinois
v. Allen, 397 U.S. 337, 342–44 (1970). Each of these cases also is at least one step removed from
Tolbert’s. There is nothing about his trial that presented an unacceptable risk that the jury decided
his guilt based on anything other than the evidence before it.

That leads to the last possibility (we can think of)—that the jury engaged in premature jury
deliberations. In such cases, courts worry if the jury “prematurely form[s] judgments that will be
difficult to dislodge later in the proceedings.” United States v. Jadlowe, 628 F.3d 1, 17 (1st Cir.
2010). The first problem with this theory is that the Supreme Court has not entertained a premature-4-

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deliberations case, making it hard to say that anything in this area is squarely established for
§ 2254(d) purposes. The second problem with this claim is that it falls short even under existing
court of appeals precedents. Two cases present nearly identical facts, and in each the court rejected
the claim on direct review. In United States v. Gianakos, 415 F.3d 912, 921 (8th Cir. 2005), during
the government’s presentation of evidence, one juror mouthed to another, “he’s guilty.” Given the
presumption that jurors impartially apply the law to the evidence before them and given that
Gianakos offered “no allegations of external influence on the jury” rebutting the presumption, the
court of appeals affirmed Gianakos’ conviction. Id. at 921–22. The Eighth Circuit likewise did not
disturb the conviction in United States v. Caldwell, 83 F.3d 954, 956 (8th Cir. 1996), where during
the trial one juror said, “I’ve heard all of this I need to hear,” and another said, “this is just a bunch
of crap.” Caldwell offered no reason to doubt that the jury came to its verdict based on anything but
the trial evidence, prompting the court of appeals to affirm. Id.

In the end, we see no path by which Tolbert can obtain relief. The Supreme Court’s “cases
give no clear answer to the question presented, let alone one in [Tolbert’s] favor,” making it difficult
to hold “that the state court unreasonably applied clearly established Federal law.” Wright v. Van
Patten, 552 U.S. 120, 126 (2008) (alterations and quotation marks omitted).

For these reasons, we affirm.

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