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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Benjamin Bernal Cota, Petitioner, 10 11 v. 12 No. CV-16-03356-PHX-DJH DEATH-PENALTY CASE Charles L. Ryan, et al., ORDER 13 Respondents. 14 Pending before the Court is Petitioner’s Motion to Allow Juror Contact (Doc. 19), 15 requesting leave of the Court to investigate his juror-related habeas claims by contacting 16 his state trial jurors. 17 The issue of juror contact arose in the early stages of this federal habeas case when 18 Respondents filed a motion to preclude juror contact, requesting that the court order that 19 Petitioner not contact any jurors other than by leave of Court upon a showing of good 20 cause that juror misconduct may have occurred during trial proceedings. (Doc. 10.) At 21 that time Petitioner did not respond by citing any specific facts that would suggest juror 22 misconduct had occurred. (See Doc. 13.) This Court, considering the competing interests 23 of protecting jury deliberations from intrusive inquiry, see Tanner v. United States, 483 24 U.S. 107, 127 (1987), and Petitioner’s ability to demonstrate that extraneous prejudicial 25 influence was brought to bear on the jury, granted Respondent’s motion to preclude juror 26 contact. The Court found that “the proper way for Petitioner to proceed is to first make a 27 preliminary showing that extraneous prejudicial information or outside influence was 28 improperly brought to the jury’s attention, and seek leave of court to approach the jury.” 1 (Doc. 14.) This Court further ruled that good cause may be shown “only by satisfying the 2 requirements of the exception stated in [Fed. R. Evid.] Rule 606(b).” 3 Petitioner asserts that Rule 21.4 of the Arizona Rules of Criminal Procedure is the 4 relevant evidentiary standard in the context of habeas actions, not Fed. R. Evid. 606(b). 5 To the extent Petitioner is asking the Court to reconsider its previous order, the request is 6 denied. Unless in conflict with the Rules Governing § 2254 Proceedings, the Federal 7 Rules of Evidence apply to § 2254 proceedings. See Fed.R.Evid. 1101(a) (“These rules 8 apply to proceedings before ... United States district courts”), 1101(b) (“These rules apply 9 in ... civil cases and proceedings”), and 1101(e) (“A federal statute or a rule prescribed by 10 the Supreme Court may provide for admitting or excluding evidence independently from 11 these rules.”).1 Accordingly, Rule 606(b) applies despite a potentially conflicting state 12 evidence rule. McDowell v. Calderon, 107 F.3d 1351, 1367, 46 Fed. R. Evid. Serv. 749 13 (9th Cir. 1997), opinion amended and superseded in part, 116 F.3d 364 (9th Cir. 1997) 14 and judgment vacated in part on reh'g on other grounds, 130 F.3d 833, 835 (9th Cir. 15 1997) (en banc). 16 In his reply, Petitioner contends that his case presents jury concerns related to his 17 rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments, and that it is 18 misleading to label Rule 606(b) as dispositive when there are constitutional claims at 19 issue. This is, however, the precise concern the Court in Tanner addressed, reaching the 20 conclusion that a defendant’s constitutional interests in an unimpaired jury are protected 21 by several aspects of the trial process: the voir dire process, the ability of the court and 22 counsel to observe jurors during the trial, the ability of jurors to make pre-verdict reports 23 of misconduct, and the availability of post-verdict impeachment through non-juror 24 evidence of misconduct. A court is not required to go further by allowing postverdict 25 26 27 28 1 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. -2- 1 investigation into juror misconduct, which “would in some instances lead to the 2 invalidation of verdicts reached after irresponsible or improper juror behavior,” because 3 “[i]t is not at all clear . . . that the jury system could survive such efforts to perfect it.” 4 Tanner, 483 U.S. at 120. 5 Although jurors may not be questioned about their deliberations and most matters 6 related thereto, they may be questioned regarding any extraneous influence on their 7 verdict. Tanner, 483 U.S. at 117; Traver v. Meshriy, 627 F.2d 934, 941 (9th Cir. 1980). 8 Federal Rule of Evidence 606(b) allows jury testimony in limited circumstances to show 9 that (1) extraneous prejudicial information was improperly brought to the jury’s attention, 10 (2) an outside influence was improperly brought to bear upon any juror, or (3) there was a 11 mistake in the verdict form. See Tanner, 483 U.S. at 121; Fed. R. Evid. 606(b). 12 After a more thorough review of the record, Petitioner now asserts that he can 13 show good cause as to why he should be permitted to contact jurors. First, Petitioner 14 states that claims of jury misconduct were raised at trial and on appeal regarding 15 allegations that a juror may have been sleeping during Petitioner’s mitigation 16 presentation. The trial court denied Petitioner’s request to voir dire the juror and denied 17 his subsequent motion for a new trial based on juror misconduct. Petitioner’s claims 18 regarding juror misconduct were also denied on direct appeal. Second, Petitioner asserts 19 that a juror was observed texting while testimony was being presented. The trial court 20 admonished the jurors after this incident. Third, a juror reported missing portions of 21 testimony when she perceived everyone in the courtroom to be laughing at her after she 22 asked a question. The trial court and both counsel questioned the juror about this incident, 23 and the court ultimately decided she could be fair and impartial. Finally, Petitioner asserts 24 additional juror-related issues were raised in his state post-conviction proceedings. 25 Petitioner raised appellate ineffectiveness claim challenging the State’s preliminary 26 strikes during voir dire on two grounds: first, that the State used three strikes to 27 improperly remove venirepersons based on their religion, and second, that seven of ten 28 strikes were used to remove women from the panel in violation of Batson v. Kentucky, -3- 1 106 S. Ct. 1712 (1986). Petitioner argues these facts demonstrate good cause and satisfy 2 the requirements of the Rule 606(b) exception. The Court disagrees. 3 This Court struck a balance on the issue of juror contact by imposing a good 4 cause requirement in light of the limited purposes for which juror evidence would ever be 5 admissible in federal habeas proceedings. The Court does not intend to allow Petitioner to 6 upset this balance in pursuit of incompetent evidence. Petitioner’s allegations of juror 7 inattentiveness and counsel ineffectiveness do not constitute good cause for contacting 8 the jurors in this case because they do not assert facts which would satisfy the 9 requirements of any exception stated in Rule 606(b). The Supreme Court has recognized 10 that there is no exception to Rule 606(b) for possible juror inattentiveness. See Tanner, 11 483 U.S. at 120 (holding that “[a]llegations of juror misconduct, incompetency, or 12 inattentiveness” do not constitute an exception to Rule 606(b).) Nor does Petitioner’s 13 claim of ineffectiveness based on a failure to challenge the State’s preliminary strikes fall 14 under any Rule 606(b) exception. Moreover, as Respondents note, it is unclear how 15 interviewing jurors would assist in making this claim. 16 Because Petitioner has failed to make a preliminary showing, as required by this 17 Court’s order, that extraneous information or outside influence was improperly brought to 18 the jury’s attention, IT IS ORDERED that the motion (Doc. 19) is denied. 19 Dated this 8th day of August, 2017. 20 21 22 23 Honorable Diane J. Humetewa United States District Judge 24 25 26 27 28 -4-

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