Tong Xiong v. Tom Felker, et al
FILED OPINION (JOHN T. NOONAN, M. MARGARET MCKEOWN and MILAN D. SMITH, JR.) AFFIRMED. Judge: JTN Dissenting, Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. --[Edited 06/05/2012 by ASW: Opinion corrected to include filed date. Resent notice.]
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UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TOM FELKER, Warden; ATTORNEY
GENERAL FOR THE STATE OF
Appeal from the United States District Court
for the Eastern District of California
John A. Mendez, District Judge, Presiding
Submitted March 12, 2012*
San Francisco, California
Filed June 5, 2012
Before: John T. Noonan, M. Margaret McKeown, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr., Circuit Judge;
Dissent by Judge Noonan
*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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XIONG v. FELKER
Stephanie M. Adraktas, Berkeley, California, for the
Kamala D. Harris, Michael P. Farrell, Tami M. Krenzin, Kenneth N. Sokoler, California Department of Justice, Sacramento, California, for the respondents-appellees.
M. SMITH, Circuit Judge:
This case presents three certified issues which we review
under the Anti-terrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. § 2254(d): (1) whether PetitionerAppellant Tong Xiong’s (Xiong) federal due process rights
were violated when the trial court construed California law to
allow jurors to refuse to discuss their deliberations and
alleged misconduct after trial; (2) whether jury misconduct
involving unsolicited observations of some jurors deprived
XIONG v. FELKER
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Xiong of his right to an impartial jury; and (3) whether Xiong
received ineffective assistance of counsel due to counsel’s
elicitation of unfavorable expert testimony on crossexamination.
Following an initial mistrial, Xiong was convicted of second degree murder with aggravating enhancements. Xiong
received a sentence of 40 years to life, with a firearm
enhancement. Xiong appealed his conviction to the California
Court of Appeal on multiple grounds, including insufficient
evidence, ineffective assistance of counsel, and jury misconduct. The Court of Appeal vacated a single sentence on the
firearm enhancement, but affirmed on all other counts,
thereby reducing Xiong’s sentence to 15 years to life. Xiong
subsequently filed a habeas petition in the United States District Court for the Eastern District of California, pursuant to
28 U.S.C. § 2254(d).
Under the facts of this case, as controlled by the Antiterrorism and Effective Death Penalty Act (AEPDA), 28
U.S.C. § 2254(d), we may only reverse the state court’s conviction if no fair minded jurist could conclude that the petitioner’s clearly established constitutional rights, as established
by the Supreme Court of the United States, were not violated.
We hold that the California Court of Appeal’s decision was
not an unreasonable application of Xiong’s Sixth and Fourteenth Amendment rights under AEDPA’s stringent standards, and we affirm the decision of the district court denying
Xiong’s petition for habeas corpus relief.
FACTUAL BACKGROUND AND PRIOR
Xiong and two co-defendants were charged with murder,
discharging a firearm at an inhabited dwelling, discharging a
firearm from a motor vehicle at a person not in the vehicle,
and discharging a firearm from a motor vehicle. Additional
enhancements were also sought, including several firearm
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XIONG v. FELKER
enhancements, a criminal street gang enhancement, and the
special circumstance of intentional first degree murder perpetrated by discharging a firearm from a motor vehicle. The
state trial court declared the first trial a mistrial after the jury
was unable to reach a verdict. Xiong’s conviction on retrial
gave rise to the petition for a writ of habeas corpus at issue
in this appeal.
Xiong’s ineffective assistance of counsel claim arises out of
an incident during the cross-examination of one of the prosecution’s expert witnesses. During cross-examination, counsel
elicited unfavorable testimony from the prosecution’s gang
expert, to the effect that individuals in a car with a “gang
mentality,” present during the commission of a crime, would
be promoting gang activity solely by their presence. Specifically, the prosecution’s gang expert testified that while in that
car, “whatever happens and what[ever] they encounter, they
are all down for [it]. That’s how gangsters work.”
Xiong’s due process, fair trial and impartial jury claims
arise out of the jury’s consideration of extrinsic evidence
relating to the testimony of his brother, Fue (Fue). When called by the prosecution as a hostile witness, Fue testified on
direct examination that he could not remember many answers
to questions about Xiong’s offenses and alleged gang affiliations that he had previously given when interviewed by the
police. He was impeached by the prosecution, which played
a videotape of the police interview in which a clearly lucid
Fue stated that his brother had shot someone. On crossexamination, Fue testified that he had been “knocked out”
before, had memory problems, and was easily confused. Fue
testified that he could not even recollect testimony he gave
during his direct and cross-examination, and did not remember reading the transcript of his police interview that morning
during his testimony. Fue also testified that he could not identify the President of the United States or the Governor of California.
XIONG v. FELKER
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During the course of Fue’s two days of testimony, Jurors
Three, Nine and Ten, in passing, observed Fue talking in a
hallway on his cell phone in a clear and coherent manner. In
a declaration, Juror Nine stated that Fue’s out-of-court demeanor was discussed by the jury during its deliberation, but later
corrected the declaration to state that this information was
only discussed after the jury had already found Fue not credible based on the impeachment evidence presented.
Xiong was ultimately found guilty of all counts, including
second degree murder. The jury at his retrial also found that
Xiong acted as a principal in the firearm offense and that he
committed the offenses for the benefit of a criminal street
gang. However, the jury rejected an additional enhancement
for Xiong’s personal use of a firearm. Ultimately, Xiong was
convicted and sentenced to a term of 15 years to life for the
murder, as well as a consecutive term of 25 years to life for
the firearm enhancement. Sentences on the remaining counts
were stayed, for a total sentence of 40 years to life.
After the jury rendered the verdict and was discharged,
Xiong’s attorney learned of the jurors’ observations of Fue
outside of the courtroom. Xiong’s counsel requested that the
court release juror contact information so that he could investigate the matter. On October 22, 2004, the trial court found
that Xiong had shown good cause for disclosure of the jurors’
contact information. However, the court indicated that it
would contact the jurors first, and if the jurors did not want
to be heard about the matter, then the law entitled them to
decline to discuss the proceedings. In the following hearing,
the court informed the parties that it had contacted the jurors
in writing about the defense’s request for contact information
and that it had also informed the jurors that if they did not
respond, they would be treated as if they did not wish to be
contacted. Ultimately, ten of the twelve jurors responded,
three of whom ultimately indicated they didn’t want to be
contacted in the future. The remaining seven jurors provided
their contact information.
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XIONG v. FELKER
On December 14, 2004 Xiong filed a motion for a new trial
on the ground of jury misconduct. Xiong’s motion included
declarations from Jurors 5, 9 and 10, discussing the jurors’
observations of Fue in the hallway. The court held a hearing
and subsequently denied Xiong’s motion on the basis that
Xiong suffered neither prejudice nor actual bias from the
jury’s exposure to the extrinsic evidence.
Xiong appealed, challenging the sufficiency of the evidence
of his conviction, the trial court’s refusal to require jurors to
discuss their deliberations with the defense upon good cause,
and the jury’s consideration of the extraneous evidence. The
California Court of Appeal reversed the criminal street gang
and firearm use enhancements for insufficient evidence, but
affirmed the judgment on all other grounds. Xiong’s sentence
was reduced to 15 years to life.
Xiong filed a petition for writ of habeas corpus in the district court on the grounds of ineffective assistance of counsel
and jury misconduct. A magistrate judge filed findings and
recommendations denying both claims. Subsequently, the district court adopted the magistrate judge’s findings and recommendations in their entirety. Xiong timely appealed.
STANDARD OF REVIEW
We review the district court’s denial of Xiong’s habeas
petition de novo. Yee v. Duncan, 463 F.3d 893, 897 (9th Cir.
2006). Under AEDPA, we may not grant his petition “unless
the adjudication of the claim—(1) resulted in a decision that
was contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme
Court of the United States; 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.”
28 U.S.C. § 2254(d) (emphasis added); see also Penry v.
Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor,
529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d
XIONG v. FELKER
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1223, 1229 (9th Cir. 2001). “Clearly established federal law”
means “the governing legal principle or principles set forth by
the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).
Under AEDPA’s first clause regarding questions of law
under section 2254(d)(1), the “contrary to” and “unreasonable
application” analyses are distinct. 28 U.S.C. § 2254(d)(1). We
may grant a federal writ of habeas corpus under the “contrary
to” clause only if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law
or if the state court decides the case differently than the
Supreme Court on a set of “materially indistinguishable”
facts. Williams, 529 U.S. at 410. We may grant relief under
the “unreasonable application” clause only if the state court
correctly identifies the governing legal principle but unreasonably applies it to the particular facts of the case. Id. We
look to the state court’s “decision, as opposed to its reasoning,” to determine whether it was an “unreasonable application” of clearly established Supreme Court precedent. Merced
v. McGrath, 426 F.3d 1076, 1081 (9th Cir. 2005) (emphasis
added). It is not enough for us to determine, in our independent judgment, that the state court’s decision was incorrect, or
even erroneous. Williams, 529 U.S. at 410. Our inquiry is
strictly limited to whether the state court’s application of
clearly established Supreme Court precedent in its final decision was “objectively unreasonable.” Id.
AEDPA’s second clause governs basic factual determinations arrived at in light of all the evidence in state court proceedings. 22 U.S.C. § 2254(d). We may only grant relief for
factual findings that are “objectively unreasonable.” Taylor v.
Maddox, 366 F.3d 992, 1007-08 (9th Cir. 2004). Factual findings are objectively unreasonable if they are unsupported by
sufficient evidence in the state court record. Id. However,
mixed questions of law and fact, including the prejudice
determinations in jury misconduct and ineffective assistance
of counsel petitions, are generally reviewed under section
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XIONG v. FELKER
2254(d)(1), not section 2254(d)(2). See Caliendo v. Warden of
Cal. Men’s Colony, 365 F.3d 691, 693-94 (9th Cir. 2004) (en
banc) (determination of prejudice in juror misconduct case
was mixed question of law and fact), Strickland, 466 U.S. at
698 (prejudice component of ineffective assistance claim was
mixed question of law and fact); see also Davis v. Woodford,
384 F.3d 628, 637 (9th Cir. 2004) (mixed questions of law are
evaluated under § 2254(d)(1)).
Jury Misconduct Claim
There is no dispute that juror misconduct occurred when
some jurors considered, and later discussed, Fue’s conduct in
the courtroom hallway. The issues here are (1) whether
Xiong’s clearly established right to a fair trial was violated
when the trial court refused to allow his attorney to directly
contact jurors regarding the juror misconduct after those
jurors indicated they were unwilling to discuss the case; and
(2) whether Xiong’s clearly established right to a fair trial and
impartial jury was violated by the jury’s consideration of
extrinsic evidence. We hold that the California Court of
Appeal did not unreasonably apply the relevant legal principles set forth by the Supreme Court under the Sixth and Fourteenth Amendments when it denied Xiong’s requests to
investigate the juror misconduct, and when it found no prejudice to Xiong.
The Scope of the Jury Misconduct Inquiry did not
Violate Xiong’s Right to Due Process.
Xiong contends that the trial court deprived him of his due
process rights by informing the jurors after trial that they were
not obligated to speak with the defense in violation of his
right to a fair trial and an impartial jury. Specifically, Xiong
argues that the trial court erred by allowing jurors to refuse to
discuss their deliberations once he had established good cause
XIONG v. FELKER
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for the release of their contact information pursuant to California Code of Civil Procedure sections 206 and 237.
 First, we hold that Xiong’s claim regarding the posttrial rights of jurors is procedurally defaulted.1 Under the procedural default doctrine, federal courts will not review a question of federal law previously decided by a state court if the
state court’s decision rests on a state law ground that is independent of federal law and adequate to support judgement.
Coleman v. Thompson, 501 U.S. 722, 729 (1991). A state procedural default is independent unless it appears “to rest primarily on federal law or appears to be interwoven with federal
law.” Id. at 734. A state procedural default is adequate if it is
“ ‘firmly established and regularly followed’ by the time as of
which it is to be applied.” Ford v. Georgia, 498 U.S. 411, 424
(1991). The petitioner may only avoid default if he can establish cause and prejudice, or that failure to consider the claim
will result in a fundamental miscarriage of justice. Coleman,
501 U.S. at 750.
 Although he did not object at trial, Xiong raised his
claim that the trial court deprived him of due process by
informing the former jurors that they were not required to
speak with the defense during its post-verdict investigation to
the California Supreme Court. The California Supreme Court
denied his petition without comment. “Looking through” to
the last reasoned decision by a state court, the California
Court of Appeal held, in part, that Xiong had forfeited his
claim by failing to object at trial. Ylst v. Nunnemaker, 501
U.S. 797, 804, n.3 (1991). Accordingly, because Xiong failed
to object to the court’s post-trial investigation of the juror
Even if Xiong’s claim were not procedurally defaulted, it would be
barred by the lack of controlling, clearly established Supreme Court
Authority, under § 2254(d) and under the “new rule” doctrine of Teague
v. Lane. 498 U.S. 288, 299-301, 310 (1989) (prohibiting the use of a “new
rule” of constitutional law, or even a settled rule applied in a novel setting,
to apply retroactively in habeas corpus proceedings to invalidate a final
state criminal conviction).
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XIONG v. FELKER
misconduct at trial, his forfeiture under California law constitutes a procedural default. See, e.g., Rich v. Calderon, 187
F.3d 1064, 1070 (9th Cir. 1999).
 Second, Xiong’s claim that the trial court violated his
constitutional rights by failing to require that all the former
jurors be questioned under oath also fails. “Habeas claims not
raised in the petition before the district court are not cognizable on appeal.” Belgarde v. Montana, 123 F.3d 1210, 1216
(9th Cir. 1997) (internal quotation marks omitted). In his
habeas petition, Xiong did not claim that the Constitution
entitled him to require the former jurors to testify, and the
District Court never adjudicated such a claim. Xiong only
claimed that the trial court deprived him of due process by
prohibiting his attorneys from speaking to former jurors who
did not want to discuss the case. Xiong did not raise this
ground in his petition for habeas relief, nor has it been certified on appeal. Accordingly, Xiong’s claim that the trial court
violated his rights by failing to require that all former jurors
be questioned under oath is not cognizable here for lack of
certification. Belgarde, 123 F.3d at 1216.
The Jury’s Consideration of Extrinsic Evidence did
not Prejudice Xiong.
 Extraneous influences on a jury can, under some circumstances, require the reversal of a conviction. Parker v.
Gladden, 385 U.S. 363, 364-65 (1966). Indeed, “evidence
developed against a defendant must come from the witness
stand.” Fields v. Brown, 503 F.3d 755, 779 (9th Cir. 2007);
see also Turner v. Louisiana, 379 U.S. 466, 472 (1965) (holding that the requirement that the jury’s verdict must be based
on the evidence developed at trial “goes to the fundamental
integrity of all that is embraced in the constitutional concept
of trial by jury”). Generally speaking, “[p]rivate communications, possibly prejudicial, between jurors and third persons,
or witnesses, or the officer in charge, are absolutely forbidden, and invalidate the verdict, at least unless their harmless-
XIONG v. FELKER
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ness is made to appear.” Mattox v. United States, 146 U.S.
140, 142 (1892). However, this does not mean that all extraneous information is per se prejudicial; certain extrinsic contact with witnesses, such as contact involved with “passing
[jurors] in the hall,” may ultimately be found to be de minimis
and not prejudicial. See Caliendo, 365 F.3d at 696 (citing
Gonzales v. Beto, 405 U.S. 1052 (1972) (memorandum dissent and concurrence)). The presumption of prejudice that
arises from juror misconduct, although strong, is not conclusive; “the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such
contact with the juror was harmless to the defendant.” Remmer v. United States, 347 U.S. 227, 228-29 (1954) (applying
Mattox); see also Caliendo, 365 F.3d at 696.
Xiong argues that he was deprived of his right to a fair trial
and an impartial jury because of juror misconduct involving
the consideration of extrinsic evidence pertaining to Fue’s testimony. We disagree. To the extent that controlling constitutional authority exists pertaining to this unique set of facts, we
are compelled under the narrow scope of AEDPA to hold that
the California Court of Appeal did not unreasonably apply
clearly established Supreme Court precedent in violation of
Xiong’s Sixth and Fourteenth Amendment rights.
 At the outset, critical factual distinctions exist between
the Supreme Court jurisprudence regarding juror misconduct
and the misconduct at issue in this case. In Mattox, the
Supreme Court held that the trial court committed reversible
error by refusing to consider affidavits from the jury where
the bailiff had previously remarked to the jury that the victim
was the third person that the defendant killed and that the
defendant had been tried for his life once before. 146 U.S. at
141-42. Moreover, in Mattox, the jury also considered an outside newspaper article stating that the evidence against the
defendant was very strong, and that he would be lucky if he
was not convicted. Id. at 150-52. In Remmer, the Supreme
Court held, citing Mattox, that the trial court’s denial of a
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XIONG v. FELKER
motion for new trial was erroneous where someone told the
foreman of the jury that he “could profit by bringing in a verdict favorable” to the defendant in a tax evasion case, an affirmative effort to influence the jury. 347 U.S. at 228. Turner
involved two deputy sheriffs who provided key testimony
while also overseeing the jury during sequestration, during
which time they built up a rapport with the jurors resulting in
“a continuous and intimate association” with the jury throughout the trial. 379 U.S. at 473-74.2 In Parker, the Court granted
habeas relief after the bailiff told one of the jurors that the
defendant was guilty and a “wicked fellow,” and on another
occasion told them that if anything were wrong with a guilty
verdict, the Supreme Court would correct it. 385 U.S. at 36366. In contrast, here, the nature and magnitude of the interference with the jury’s deliberations were very different; the
misconduct consisted of three jurors’ brief discussions about
unsolicited observations they had made of a witness, unbeknownst to him, in the normal course of their activities at the
courthouse. Because the Sixth Amendment cases all involved
much more significant, and in some cases, deliberate interference with the deliberation process, the nature of the misconduct here is factually distinguishable from clearly established
Sixth Amendment Supreme Court precedent.
 Nonetheless, even if Remmer, Mattox, Turner and Parker did control, the Court of Appeal did not unreasonably
apply Supreme Court precedent. The inquiry into a jury’s consideration of extrinsic evidence does not end at whether misconduct occurred; upon a finding of misconduct, a rebuttable
presumption of prejudice applies. Remmer, 347 U.S. at 22829. The dissent mistakenly interprets Turner as holding that
any such misconduct is per se prejudicial, but this is not the
case. Mattox and Remmer teach that, although it carries a
Sitting en banc, we have already once distinguished Turner from other
clearly established Supreme Court precedent involving juror misconduct
on the basis that the misconduct at issue in Turner was both “continuous
[and] intimate.” Caliendo, 365 F.3d at 695 n.2.
XIONG v. FELKER
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heavy burden, the Government may overcome the presumption of prejudice with proof that the jury’s consideration of
extrinsic evidence was harmless. See Mattox, 146 U.S. at 142;
Remmer, 347 U.S. at 228-29.
Our dissenting colleague seeks to circumvent Mattox’s and
Remmer’s limitation on the presumption of prejudice by contending that Turner, having been decided later in time, controls. Again, the dissent’s selective logic is misguided. The
Court, in Turner, confined its analysis to extreme cases of
juror misconduct: “We deal here not with a brief encounter,
but with a continuous and intimate association throughout a
three-day trial–an association which gave these witnesses an
opportunity . . . to renew old friendships and make new
acquaintances among the members of the jury.” 379 U.S. at
473 (emphasis). Nowhere in Turner does the Court even mention, let alone overrule, Mattox or Remmer. 379 U.S. 466. The
Court’s finding that the conduct was prejudicial was based
fundamentally upon the extent and nature of the contact
between the witnesses and jurors, and the fact that the Government proffered “nothing to show what the two deputies
discussed in their conversations with the jurors.” Id. at 473.
Thus, the “inherent” prejudice that arose in Turner was not
grounded in the fact of the misconduct per se, as our colleague contends, but the “continuous” and “intimate” nature
of the association between the jurors and the prosecution witnesses. Id. (“And even if it could be assumed that the deputies
never did discuss the case directly with any members of the
jury, it would be blinking reality not to recognize the extreme
prejudice inherent in this continual association throughout
the trial between the jurors and these two key witnesses for
the prosecution.”) (emphasis added).
The holding in Caliendo, our court’s most recent consideration of a petition for habeas relief due to juror misconduct,
further exposes the dissent’s misguided application of Turner,
Mattox, and Remmer. 365 F.3d at 695-696. Sitting en banc, in
Caliendo, we relied upon Mattox and Remmer as establishing
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XIONG v. FELKER
the widely accepted bright-line rule that a finding of jury misconduct gives rise to a presumption of prejudice that may only
be rebutted with strong, contrary proof of harmlessness. 365
F.3d at 696 (“We and other circuits have held that Mattox
established a bright-line rule: Any unauthorized communication between a juror and a witness or interested party is presumptively prejudicial, but the government may overcome the
presumption by making a strong contrary showing.”) (internal
citations omitted). Moreover, in Caliendo, we distinguished
Turner, as we do here, on the grounds that the particular
nature of misconduct at issue in Caliendo was “neither continuous nor intimate,” as it was in Turner. Id. at 695 n.2. Our
analysis in Caliendo makes clear that the dissent’s attempt to
rely upon Turner, and to ignore Remmer and Mattox, fatally
distorts this long-established bright-line rule.
The Government conceded that misconduct occurred, and
thus, a presumption of prejudice arose. The question before us
now is whether the California Court of Appeal unreasonably
applied that presumption of prejudice in finding that the misconduct was harmless. We hold that it did not. The Court of
Appeal explained, in its opinion, that Xiong was prejudiced if
(1) “the extraneous material was ‘inherently and substantially
likely to have influenced the juror,’ ” or (2) given “the nature
of the misconduct and the surrounding circumstances . . . it is
substantially likely that the juror was actually biased against
the defendant.” In denying Xiong’s motion for a new trial
based upon jury misconduct, the Court of Appeal reasoned
that the extraneous information was not likely, objectively, to
have influenced the jury’s verdict because the “observations
of Fue outside the courtroom during trial were merely cumulative of what the jury witnessed on the videotaped interview.” In fact, Fue’s credibility regarding his inability to
recall prior testimony had already been impeached at trial, to
the point where it had been deemed “comical.” Ultimately,
the Court of Appeal found that any juror misconduct was
harmless because, based upon the objective facts in the
record, the extraneous evidence was merely duplicative of the
XIONG v. FELKER
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jury’s findings on Fue’s credibility. Moreover, the Court of
Appeal rejected Xiong’s argument that the jury’s observations
of Fue outside the court bolstered the reliability of his incriminatory statements because the jury rejected the most incriminatory of Fue’s out of court statements—that Xiong had
admitted that he shot the victim—in rejecting the personal use
of a firearm enhancement.
 The Court of Appeal clearly undertook to determine
whether the presumed prejudice to Xiong from the jury misconduct was harmless; it reviewed the entirety of the record
and made a reasonable factual determination that Xiong was
not prejudiced either by the extrinsic evidence’s influence or
actual bias. Accordingly, even if Remmer, Mattox, Turner and
Parker controlled, the Court of Appeal did not unreasonably
apply the Court’s required prejudice presumption.
Ineffective Assistance of Counsel Claim
 To prove ineffective assistance of counsel, a defendant
must show that considering all the circumstances, counsel’s
performance was so poor that it fell below an objective standard of reasonableness, and has prejudiced the defendant. Strickland v. Washington, 466 U.S. 668, 688-89 (1984).
Reviewing courts apply a “strong presumption” that the counsel’s performance was within the “wide range of reasonable
professional assistance.” Id. at 689. The petitioner must show
that the counsel’s errors were so serious that “counsel was not
functioning as the ‘counsel’ guaranteed the defendant by the
Sixth Amendment.” Id. at 687. And beyond incompetence, the
petitioner must show prejudice. Id. at 692. Prejudice is only
established if the petitioner shows a reasonable likelihood
that, but for counsel’s unprofessional errors, the result would
have been different. Harrington v. Richter, 131 S. Ct. 770
(2011). “The likelihood of a different result must be substantial, not just conceivable.” Id. at 792. The Court of Appeal did
not cite Strickland or explicitly apply the two part analysis
from that case. Nevertheless, the Court of Appeal’s adjudica-
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XIONG v. FELKER
tion of Xiong’s ineffective assistance of counsel claim did not
“result[ ] in a decision that was contrary to, or involved an
unreasonable application of” Strickland. See Early v. Packer,
537 U.S. 3, 8 (2002) (holding that state courts are not required
to cite or even be aware of controlling Supreme Court precedent, “so long as neither the reasoning nor the result of the
state-court decision contradicts [Supreme Court precedent]”).
Therefore, under AEDPA, we must affirm.
 During cross-examination, defense counsel asked the
gang expert, based upon a hypothetical, whether he assumed
that gang members in the car were acting in concert by their
mere presence. At the Court of Appeal, Xiong argued that his
attorney rendered ineffective assistance by eliciting the gang
expert’s opinion that gang members who are present at a
crime scene necessarily intend to aid and abet other gang
members. The Court of Appeal dismissed this claim on the
merits, reasoning that Xiong had mischaracterized the gang
expert’s testimony to be something it was not, and further,
that the expert spoke within the confines of California’s prohibition on gang expert testimony about whether a defendant
harbored specific intent. Xiong’s counsel took a calculated
risk in an attempt to elicit testimony that he was ultimately
unable to elicit; instead he elicited cross-examination testimony from the prosecution’s expert that was unfavorable.
Under Strickland, this is not enough to demonstrate the requisite incompetence, nor prejudice, to trigger § 2254(d) protection. A “fairminded jurist” could conclude that the crossexamination did not constitute ineffective assistance. Accordingly, we affirm the district court and deny Xiong’s petition
for of habeas corpus relief for ineffective assistance of counsel.
We hold that the California Court of Appeal’s decision
denying Xiong’s motion for a new trial was not an objectively
unreasonable application of clearly established federal law, as
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determined by the Supreme Court. For the foregoing reasons,
the district court’s denial of Xiong’s petition for habeas corpus is AFFIRMED.
NOONAN, Circuit Judge, dissenting:
Reversing a conviction of murder that had been affirmed by
the Supreme Court of Louisiana, Justice Stewart writing for
eight of the nine justices, stated:
The question [before the Court] goes to the nature of
the jury trial which the Fourteenth Amendment commands when trial by jury is what the State has purported to accord.
Turner v. Louisiana, 379 U.S. 466, 471 (1966).
Justice Stewart turned to an earlier case involving jury misconduct and stated: “What the Court said in that case is controlling here[.]” Id. Justice Stewart went on to repeat the
earlier case’s statement that “[a juror’s] verdict must be based
upon the evidence developed at the trial.” Id. at 472 (quoting
Irvin v. Dowd, 366 U.S. 717, 722 (1961)).
Justice Stewart continued:
The requirement that a jury’s verdict “must be based
upon the evidence developed at the trial” goes to the
fundamental integrity of all that is embraced in the
constitutional concept of trial by jury . . . .
In the constitutional sense, trial by jury in a criminal case necessarily implies at the very least that the
“evidence developed” against a defendant shall come
from the witness stand in a public courtroom where
there is full judicial protection of the defendant’s
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right of confrontation, of cross-examination, and of
counsel. What happened in this case operated to subvert these basic guarantees of trial by jury.
Turner, 379 U.S. at 472-73.
Contamination of the jury by a particular source or to a particular degree is not the focus of the Supreme Court. Justice
Stewart states the evidence before the jury must come from
the witness stand in a public courtroom. No room is left for
a dribble of relevant information snatched from the corridors
of the court by undisciplined jurors.
At issue in our case was the credibility of Fue Xiong, the
younger brother of the defendant. Fue had given a videotaped
statement to the police identifying the defendant as the
shooter. At the time of this statement, Fue was fifteen years
At his brother’s trial six years later, Fue was treated as a
hostile witness by the prosecution. He denied that his brother
had confessed. Fue testified that he had memory problems
arising from occasions where he had been knocked out. He
testified that his memory deteriorated and he became confused when stressed. A key question for the jury was whether
it should believe Fue on the videotape or on the witness stand.
Several members of the jury made observations relevant to
the credibility of Fue. This evidence did not come from the
witness stand. It came from the corridors of the court.
Juror Nine observed Fue in a hallway speaking on his cell
phone several times over the two days during which he was
a witness at the trial. Fue did not appear to be confused to
Juror Nine. Fue “had his act together.” Juror Nine stated that
Fue’s out-of-court demeanor was discussed by the jury during
its deliberation. At a subsequent hearing, Juror Nine repudiated his statement that he could hear what Fue said on the cell
XIONG v. FELKER
Page: 19 of 22
phone. He did not deny that he observed Fue. Juror Nine now
declared that any reference in the jury room to observation of
Fue on the cell phone came after the jury had decided that
Fue’s testimony was not credible.
Juror Ten and Juror Five also reported that they had
observed Fue in out-of-court cell phone conversation.
On the basis of the three jurors’ declarations, the defense
moved for a new trial. After a hearing, the trial court stated:
“Now, the misconduct in this case that I find is that the jurors
discussed those phone conversations in the jury deliberation
room.” There was a presumption of prejudice. The prosecution had the burden of rebutting it.
The trial court went on to determine whether the prosecution had met its burden. The court first ruled that “the extraneous information was not so prejudicial in and of itself as to
cause inherent bias.”
The trial court then reviewed inconsistencies in Fue’s
courtroom testimony. In contrast, the trial court stated, “In
that videotaped statement he was clear on all the essential
details.” The trial court then ruled that looking at the totality
of the evidence there was no substantial likelihood of actual
bias relative to any of the jurors.”
On direct appeal, the California Court of Appeal for the
Third Appellate District held:
Our review of the record, here, leads us to concur
with the trial court’s determination that defendant
suffered no prejudice from the misconduct in question, either objectively or based on actual juror bias.
We agree with the trial court that, objectively, the
extraneous information was not likely to have influenced the jury. We accept the trial court’s observa-
Page: 20 of 22
XIONG v. FELKER
tion that Fue was not a credible witness and that his
memory lapses while testifying were “comical,” as
the transcript of Fue’s testimony supports the trial
court’s assessment. The court contrasted Fue’s
demeanor in court with his videotaped interview, in
which Fue was “clear on all the essential details.”
Although the videotaped interview is not before this
court, [footnote omitted] the transcript of that interview confirms that Fue had no difficulty with recall,
in marked contrast to his responses to questions at
trial. Thus, observations of Fue outside the courtroom during trial were merely cumulative of what
the jury witnessed on the videotaped interview and
were unlikely to have influenced the jury.
People v. Xiong, No. C048798, 2006 WL 3033192, at *14
(Cal. Ct. App. Oct. 26, 2006).
Our review is of the opinion of the California Court of
Appeal, the last reasoned judgment of the state courts.
The California appellate court confirmed what the trial
court had found: Xiong’s jury had before it “extraneous information” not presented to the jury in the trial. Following the
trial court, the California Court of Appeal held that “objectively” the extraneous information was “not likely to have
influenced the jury.” Id. The California Court of Appeal went
on to find Fue not to be a credible witness.
The majority deprive Turner of its force by citing Remmer,
a decision of the Supreme Court predating Turner and stating
in dicta that the presumption of jury misconduct is rebuttable.
See maj. op. at 6264-65. The majority’s use of precedent turns
the dicta and decisions of the Supreme Court upside down.
The earlier dicta in a case, moving towards the ultimate prohibition of outside influence, are now turned into a gloss on the
definitive resolution of the issue. It’s an odd way to read controlling authority.
XIONG v. FELKER
Page: 21 of 22
Nothing in Turner gives approval to a court determining
that information received by the jury outside the trial is permissible if the information is not too prejudicial. Nothing in
Turner indicates that the jury’s verdict may be upheld by the
trial judge or the appellate court deciding the credibility of the
witness as to whom the jury has information not obtained at
the trial. To permit a state appellate court to validate a trial in
this informal and intrusive way is to impair the integrity of the
The state asserts that defendant’s claim is barred “because
there is no Supreme Court authority addressing whether and
when the jury’s discussion of a juror’s observations outside
the courtroom violates a defendant’s right to due process or
any other constitutional right.” Inconsistently, the state moves
on to address Turner and quotes from its holding that the
jury’s verdict “must be based on the evidence developed at
the trial.” The state does not deal with this requirement but
seeks to distinguish Turner, saying Turner addressed external
contact made with the jury, not the misconduct of the jurors
themselves. Therefore, the state argues, Turner does not
“squarely” face the issue in this case. But it is the state that
does not squarely face Turner.
Turner holds that a jury must decide a case on the evidence
presented to the jury in the courtroom. Any other source of
information is excluded by what a jury trial demands. The
observations of Fue and the discussion of those observations
by the jury destroyed its ability to act as a jury. Contaminated,
“the nature” of a trial by jury disappeared beyond retrieval,
repair, or excuse. Under binding federal constitutional law as
determined by the United States Supreme Court Xiong is entitled to a new trial before uncontaminated jurors.
The opinion of the court in our case cites four cases in
which the United States Supreme Court found jury misconduct requiring a new trial. The opinion distinguishes these
cases by saying that each involved outside influences on the
Page: 22 of 22
XIONG v. FELKER
jury. That difference is correct. It is not a difference that the
Supreme Court drew. It is a distinction defying the holding of
Turner as to what constitutes the integrity of the jury.
The opinion of the court in our case copies the error of the
California Court of Appeal in weighing the effect of the contamination and finding the juror misconduct harmless. That
jurors themselves made out-of-court observations and discussed these observations with their fellow jurors was at least
as corrosive of the process as the comments of a bailiff or a
guard to ensure the integrity of the jury’s deliberations. Turner drew a clear and bright line. California crossed it.
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