Cota v. Ryan et al

Filing 24

ORDER denying Petitioner's 19 Motion to Allow Juror Contact. Signed by Judge Diane J Humetewa on 8/8/2017.(LFIG) (See Order for details.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Benjamin Bernal Cota,
Petitioner,

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v.

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No. CV-16-03356-PHX-DJH
DEATH-PENALTY CASE

Charles L. Ryan, et al.,

ORDER

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Respondents.

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Pending before the Court is Petitioner’s Motion to Allow Juror Contact (Doc. 19),

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requesting leave of the Court to investigate his juror-related habeas claims by contacting

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his state trial jurors.

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The issue of juror contact arose in the early stages of this federal habeas case when

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Respondents filed a motion to preclude juror contact, requesting that the court order that

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Petitioner not contact any jurors other than by leave of Court upon a showing of good

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cause that juror misconduct may have occurred during trial proceedings. (Doc. 10.) At

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that time Petitioner did not respond by citing any specific facts that would suggest juror

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misconduct had occurred. (See Doc. 13.) This Court, considering the competing interests

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of protecting jury deliberations from intrusive inquiry, see Tanner v. United States, 483

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U.S. 107, 127 (1987), and Petitioner’s ability to demonstrate that extraneous prejudicial

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influence was brought to bear on the jury, granted Respondent’s motion to preclude juror

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contact. The Court found that “the proper way for Petitioner to proceed is to first make a

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preliminary showing that extraneous prejudicial information or outside influence was

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improperly brought to the jury’s attention, and seek leave of court to approach the jury.”

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(Doc. 14.) This Court further ruled that good cause may be shown “only by satisfying the

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requirements of the exception stated in [Fed. R. Evid.] Rule 606(b).”

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Petitioner asserts that Rule 21.4 of the Arizona Rules of Criminal Procedure is the

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relevant evidentiary standard in the context of habeas actions, not Fed. R. Evid. 606(b).

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To the extent Petitioner is asking the Court to reconsider its previous order, the request is

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denied. Unless in conflict with the Rules Governing § 2254 Proceedings, the Federal

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Rules of Evidence apply to § 2254 proceedings. See Fed.R.Evid. 1101(a) (“These rules

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apply to proceedings before ... United States district courts”), 1101(b) (“These rules apply

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in ... civil cases and proceedings”), and 1101(e) (“A federal statute or a rule prescribed by

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the Supreme Court may provide for admitting or excluding evidence independently from

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these rules.”).1 Accordingly, Rule 606(b) applies despite a potentially conflicting state

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evidence rule. McDowell v. Calderon, 107 F.3d 1351, 1367, 46 Fed. R. Evid. Serv. 749

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(9th Cir. 1997), opinion amended and superseded in part, 116 F.3d 364 (9th Cir. 1997)

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and judgment vacated in part on reh'g on other grounds, 130 F.3d 833, 835 (9th Cir.

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1997) (en banc).

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In his reply, Petitioner contends that his case presents jury concerns related to his

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rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, and that it is

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misleading to label Rule 606(b) as dispositive when there are constitutional claims at

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issue. This is, however, the precise concern the Court in Tanner addressed, reaching the

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conclusion that a defendant’s constitutional interests in an unimpaired jury are protected

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by several aspects of the trial process: the voir dire process, the ability of the court and

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counsel to observe jurors during the trial, the ability of jurors to make pre-verdict reports

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of misconduct, and the availability of post-verdict impeachment through non-juror

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evidence of misconduct. A court is not required to go further by allowing postverdict

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Prior to the 2011 Amendments, Rule 1101(e) provided specifically that the
Federal Rules of Evidence applied to habeas corpus petitions filed in federal court under
28 U.S.C. § 2254. See Fed.R.Evid. 1101(e)(2010). Though the 2011 Amendments
removed the specific reference to habeas petitions, as well as a litany of other
proceedings, these changes were meant to be “stylistic only.” Notes of Advisory
Committee on 2011 Amendments.
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investigation into juror misconduct, which “would in some instances lead to the

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invalidation of verdicts reached after irresponsible or improper juror behavior,” because

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“[i]t is not at all clear . . . that the jury system could survive such efforts to perfect it.”

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Tanner, 483 U.S. at 120.

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Although jurors may not be questioned about their deliberations and most matters

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related thereto, they may be questioned regarding any extraneous influence on their

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verdict. Tanner, 483 U.S. at 117; Traver v. Meshriy, 627 F.2d 934, 941 (9th Cir. 1980).

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Federal Rule of Evidence 606(b) allows jury testimony in limited circumstances to show

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that (1) extraneous prejudicial information was improperly brought to the jury’s attention,

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(2) an outside influence was improperly brought to bear upon any juror, or (3) there was a

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mistake in the verdict form. See Tanner, 483 U.S. at 121; Fed. R. Evid. 606(b).

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After a more thorough review of the record, Petitioner now asserts that he can

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show good cause as to why he should be permitted to contact jurors. First, Petitioner

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states that claims of jury misconduct were raised at trial and on appeal regarding

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allegations that a juror may have been sleeping during Petitioner’s mitigation

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presentation. The trial court denied Petitioner’s request to voir dire the juror and denied

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his subsequent motion for a new trial based on juror misconduct. Petitioner’s claims

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regarding juror misconduct were also denied on direct appeal. Second, Petitioner asserts

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that a juror was observed texting while testimony was being presented. The trial court

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admonished the jurors after this incident. Third, a juror reported missing portions of

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testimony when she perceived everyone in the courtroom to be laughing at her after she

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asked a question. The trial court and both counsel questioned the juror about this incident,

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and the court ultimately decided she could be fair and impartial. Finally, Petitioner asserts

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additional juror-related issues were raised in his state post-conviction proceedings.

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Petitioner raised appellate ineffectiveness claim challenging the State’s preliminary

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strikes during voir dire on two grounds: first, that the State used three strikes to

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improperly remove venirepersons based on their religion, and second, that seven of ten

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strikes were used to remove women from the panel in violation of Batson v. Kentucky,

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106 S. Ct. 1712 (1986). Petitioner argues these facts demonstrate good cause and satisfy

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the requirements of the Rule 606(b) exception. The Court disagrees.

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This Court struck a balance on the issue of juror contact by imposing a good

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cause requirement in light of the limited purposes for which juror evidence would ever be

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admissible in federal habeas proceedings. The Court does not intend to allow Petitioner to

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upset this balance in pursuit of incompetent evidence. Petitioner’s allegations of juror

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inattentiveness and counsel ineffectiveness do not constitute good cause for contacting

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the jurors in this case because they do not assert facts which would satisfy the

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requirements of any exception stated in Rule 606(b). The Supreme Court has recognized

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that there is no exception to Rule 606(b) for possible juror inattentiveness. See Tanner,

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483 U.S. at 120 (holding that “[a]llegations of juror misconduct, incompetency, or

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inattentiveness” do not constitute an exception to Rule 606(b).) Nor does Petitioner’s

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claim of ineffectiveness based on a failure to challenge the State’s preliminary strikes fall

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under any Rule 606(b) exception. Moreover, as Respondents note, it is unclear how

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interviewing jurors would assist in making this claim.

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Because Petitioner has failed to make a preliminary showing, as required by this

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Court’s order, that extraneous information or outside influence was improperly brought to

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the jury’s attention, IT IS ORDERED that the motion (Doc. 19) is denied.

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Dated this 8th day of August, 2017.

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Honorable Diane J. Humetewa
United States District Judge

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