Abdelaziz v. Superior Court County of Fresno

Filing 24

ORDER DENYING the Petition for Writ of Habeas Corpus 1 , 4 , and DIRECTING the Entry of Judgment for Respondent; ORDER DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY, signed by Magistrate Judge Sheila K. Oberto on 5/6/15. (CASE CLOSED)(Hellings, J)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

EASTERN DISTRICT OF CALIFORNIA

9
10
11 ISRAEL ABDELAZIZ,

Case No. 1:12-cv-00887-SKO-HC

12

ORDER DENYING THE PETITION
FOR WRIT OF HABEAS CORPUS (DOCS. 1,
4) AND DIRECTING THE ENTRY OF
JUDGMENT FOR RESPONDENT

13

Petitioner,
v.

14
15
16

ORDER DECLINING TO ISSUE A
CERTIFICATE OF APPEALABILITY

E. VALENZUELA,
Respondent.

17
18
19
20
21
22
23
24
25
26
27
28

Petitioner is a state prisoner proceeding pro se and in forma
pauperis with a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254.

Pursuant to 28 U.S.C. 636(c)(1), the parties have

consented to the jurisdiction of the United States Magistrate Judge
to conduct all further proceedings in the case, including the entry
of final judgment, by manifesting their consent in writings signed
by the parties or their representatives and filed by Petitioner on
June 11, 2012, and on behalf of Respondent on July 25, 2012.
Pending before the Court is the petition, which was filed on October
24, 2011, along with a separate supporting memorandum.

Respondent

filed an answer on August 17, 2012, and Petitioner filed a traverse
1

1 on October 9, 2012.
2

I.

Jurisdiction

3

Because the petition was filed after April 24, 1996, the

4 effective date of the Antiterrorism and Effective Death Penalty Act
5 of 1996 (AEDPA), the AEDPA applies in this proceeding.

Lindh v.

6 Murphy, 521 U.S. 320, 327 (1997); Furman v. Wood, 190 F.3d 1002,
7 1004 (9th Cir. 1999).
8

The challenged judgment was rendered by the Superior Court of

9 the State of California, County of Fresno (FCSC), located within the
10 jurisdiction of this Court.
11 (d).

28 U.S.C. §§ 84(b), 2254(a), 2241(a),

Petitioner claims that in the course of the proceedings

12 resulting in his conviction, he suffered violations of his
13 constitutional rights.
14

The Court concludes it has subject matter jurisdiction over the

15 action pursuant to 28 U.S.C. §§ 2254(a) and 2241(c)(3), which
16 authorize a district court to entertain a petition for a writ of
17 habeas corpus by a person in custody pursuant to the judgment of a
18 state court only on the ground that the custody is in violation of
19 the Constitution, laws, or treaties of the United States.

Williams

20 v. Taylor, 529 U.S. 362, 375 n.7 (2000); Wilson v. Corcoran, 562
21 U.S. - , -, 131 S.Ct. 13, 16 (2010) (per curiam).
22

An answer was filed on behalf of Respondent E. Valenzuela, who

23 had custody of Petitioner at Petitioner’s institution of
24 confinement.

(Doc. 18.)

Petitioner thus named as a respondent a

25 person who had custody of Petitioner within the meaning of 28 U.S.C.
26 § 2242 and Rule 2(a) of the Rules Governing Section 2254 Cases in
27 the District Courts (Habeas Rules).

See, Stanley v. California

28 Supreme Court, 21 F.3d 359, 360 (9th Cir. 1994).
2

Accordingly, the Court concludes that it has jurisdiction over

1

2 the person of the Respondent.
3

II.

Background

4

Petitioner was convicted in the FCSC of having committed grand

5 theft in violation of Cal. Pen. Code § 487(a) on December 28, 2007
6 (count 1); identity theft in violation of Cal. Pen. Code § 530.5
7 from December 28, 2007, through January 7, 2008 (count 2); and petty
8 theft, a lesser included offense of second degree robbery, in
9 violation of Cal. Pen. Code § 488 on February 9, 2008 (count 3).
10 The judgment was affirmed on direct appeal by the Court of Appeal of
1
11 the State of California, Fifth Appellate District (CCA) (LD 4).

12 California Supreme Court (CSC) summarily denied review.

The

(LD 6.)

In a habeas proceeding brought by a person in custody pursuant

13

14 to a judgment of a state court, a determination of a factual issue
15 made by a state court shall be presumed to be correct; the
16 petitioner has the burden of producing clear and convincing evidence
17 to rebut the presumption of correctness.

28 U.S.C. § 2254(e)(1);

18 Sanders v. Lamarque, 357 F.3d 943, 947-48 (9th Cir. 2004).

This

19 presumption applies to a statement of facts drawn from a state
20 appellate court’s decision.
21 (9th Cir. 2009).

Moses v. Payne, 555 F.3d 742, 746 n.1

The following statement of facts is taken from

22 the opinion of the CCA in People v. Israel Abdelaziz, case number
23 F057903, filed on November 9, 2010.
24

The December 28, 2007 Incident

25

On December 28, 2007, Josh Brockett, a plainclothes loss
prevention officer at Gottschalk's in Clovis, was on duty
in the store's camera room when one of the managers

26
27
28

1

The case was remanded on the sole issue of entitlement to presentence custody
credits, but the judgment was otherwise affirmed. (LD 4.)

3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

reported someone who might be a chronic offender was
trying to return items, namely cookware and a comforter,
without a receipt. Brockett went to one of the store
exits, where he saw Abdelaziz leaving the store carrying
cookware and a comforter valued at more than $400.
Brockett watched as Abdelaziz got into his car. He did not
arrest Abdelaziz at that time because he did not know if
Abdelaziz had the items with him when he entered the
store.
Brockett returned to the camera room to see if he could
pick up Abdelaziz on the outside cameras, but Abdelaziz
was out of range. Less than a minute later, Brockett, who
was still observing from the camera room, saw Abdelaziz
re-enter the store through the same doors and walk over to
the men's department, where he selected a suit jacket and
matching pants. He took the items to the men's wrap desk,
where a cash register is located. Brockett called the
sales clerk there, who told him Abdelaziz was trying to
return the garments. Brockett did not see Abdelaziz give
the clerk any money.
After about a 20 second conversation at the men's wrap
desk, Abdelaziz walked to the children's wrap desk about
40 yards away and spoke with the sales clerk there.
Abdelaziz then went to one of the exit doors still holding
the pants and jacket, and stood near the exit for 45
seconds to a minute. Brockett called mall security, left
the camera room, and went to the exit where Abdelaziz was
standing. Brockett walked by Abdelaziz and went out of the
store. A uniformed mall security officer had arrived, but
was standing out of view. A few seconds later, Abdelaziz
walked out of the store. Brockett approached him,
identified himself, and asked Abdelaziz to come back into
the store. Abdelaziz cooperated at first, but then ran,
dropping the garments. He got about three feet before
Brockett tackled him, taking him to the ground. Brockett
handcuffed him with the assistance of the mall security
guard.
Brockett took Abdelaziz to the store security area and
called the Clovis police. While waiting for police to
arrive, Brockett asked Abdelaziz his name. Abdelaziz told
him his name was Mark Nelson and his date of birth was
October 31, 1964. Abdelaziz also identified himself to the
Clovis police officer who arrived as Mark Nelson with a
date of birth of October 31, 1964. The cookware and
4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

comforter Brockett had seen Abdelaziz leave the store with
were retrieved from Abdelaziz's truck. The total value of
the cookware, comforter, jacket and pants was $920.
Brockett later reviewed video of Abdelaziz entering the
store the first time that day, which showed that he did
not have the cookware or comforter with him. The video
showed him in the departments where those items were
located, but did not show him selecting the items. The
video also showed Abdelaziz at the china wrap desk,
attempting to return the cookware and comforter through a
merchandise only return, which is used when the customer
does not have a receipt. In such a return, the customer is
given a card that can be spent only in the store. Based on
his review of the video, Brockett believed Abdelaziz had
not paid for the cookware and comforter, and did not enter
the store with those items.
Clovis police arrested Abdelaziz and took him to the
police department, where he signed all paperwork as “Mark
Nelson,” including a booking form, inmate clarification
questionnaire, and property envelope. The signature on the
paperwork did not match the signature of the real Mark
Nelson. Charges were filed against “Mark Nelson.” On
January 7, 2008, Abdelaziz pled no contest to a
misdemeanor theft charge under the name of Mark Nelson.
Mark Anthony Nelson testified at the preliminary hearing
that his date of birth is October 31, 1964.FN2 He was at
home on December 28, 2007 and did not go to Gottschalk's
that day. He found out about the shoplifting charge when
the district attorney told him the deal was off in another
case he was involved in that was going to be dismissed
because he had not obeyed all laws. He ultimately obtained
a factual finding of innocence with respect to the
shoplifting charge. Nelson and Abdelaziz are cousins;
Nelson has known Abdelaziz his whole life. According to
Nelson, Abdelaziz knew Nelson's birth date because they
acknowledged each other's birthdays every year when they
were growing up and Nelson's birthday is on Halloween.
Abdelaziz did not have Nelson's permission to use his name
and birth date on December 28, 2007.
FN2. Nelson's preliminary hearing testimony was
introduced into evidence and read to the jury
after the parties stipulated to his
unavailability.
5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The February 9, 2008 Incident
On February 9, 2008, Matthew Silver, Brittany Stapp and
Gina Cox were working as loss prevention agents at the
Gottschalk's Fashion Fair store in Fresno. At around four
p.m., all three were in the store's video room, where a
photograph of Abdelaziz was posted with the name “Mark
Nelson” under it, when Silver received a call from a sales
clerk about a suspicious return. They then noticed
Abdelaziz going down the escalator to the first floor; he
was not carrying anything in his hands. Abdelaziz went
into the women's department, took some garments and
presented them for return. He received a credit receipt
for the garments in the amount of $99.20 and a card known
as a merchandise only card, which permitted him to buy
merchandise of that value. He had both the card and
receipt in his pocket. At this point, the transaction was
complete.
Silver and Cox contacted Abdelaziz, while Stapp stayed in
the video room operating the camera. As Silver and Cox
approached Abdelaziz, they told him they were making a
citizen's arrest. Abdelaziz ran, but was detained by
Silver, Cox and other security personnel. As Silver tried
to trip up Abdelaziz, Abdelaziz spun around toward Cox,
his left hand came toward her face, and she was struck in
the lower jaw, causing a red mark. Stapp left the video
room to assist Silver and Cox; when she arrived, Abdelaziz
was on the floor kicking and screaming. Abdelaziz was
eventually handcuffed and taken to the security office; on
the way there, he identified himself as Mark Nelson. A
search of Abdelaziz revealed two receipts and one
merchandise only card that had a total credit value of
$243 or $244. The receipts had Abdelaziz's true name on
them. Abdelaziz's identification card was also found,
which stated his true name.
People v. Abdelaziz, no. F057903, 2010 WL 4461685, at *1-*3 (Nov. 9,
2010).
III.

Sufficiency of the Evidence

Petitioner alleges that the evidence was insufficient to
support his conviction of identity theft in violation of Cal. Pen.
Code § 530.5 because it did not establish beyond a reasonable doubt
6

1 that Petitioner used the information for an unlawful purpose or
2 obtained the identity of Mark Nelson for the purpose of committing
3 theft; rather, Petitioner used the identification on the spur of the
4 moment when confronted by authorities.

(Doc. 1, 5; doc. 4, 2-3, 10-

5 12.)
6

A.

Standard of Decision and Scope of Review

7

Title 28 U.S.C. § 2254 provides in pertinent part:

8

(d) An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the
judgment of a State court shall not be granted
with respect to any claim that was adjudicated
on the merits in State court proceedings unless
the adjudication of the claim–

9
10
11
12
13
14
15

(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

17

(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.

18

Clearly established federal law refers to the holdings, as

16

19 opposed to the dicta, of the decisions of the Supreme Court as of
20
21
22
23

the time of the relevant state court decision.

Cullen v.

Pinholster, - U.S. -, 131 S.Ct. 1388, 1399 (2011); Lockyer v.
Andrade, 538 U.S. 63, 71 (2003); Williams v. Taylor, 529 U.S. 362,

24 412 (2000).
25

A state court’s decision contravenes clearly established

26 Supreme Court precedent if it reaches a legal conclusion opposite
27

to, or substantially different from, the Supreme Court's or

28
7

1 concludes differently on a materially indistinguishable set of
2 facts.
3
4
5
6

Williams v. Taylor, 529 U.S. at 405-06.

A state court

unreasonably applies clearly established federal law if it either 1)
correctly identifies the governing rule but applies it to a new set
of facts in an objectively unreasonable manner, or 2) extends or

7 fails to extend a clearly established legal principle to a new
8 context in an objectively unreasonable manner.

Hernandez v. Small,

9 282 F.3d 1132, 1142 (9th Cir. 2002); see, Williams, 529
10
11
12
13

U.S. at 407.

An application of clearly established federal law is

unreasonable only if it is objectively unreasonable; an incorrect or
inaccurate application is not necessarily unreasonable.

14 529 U.S. at 410.

Williams,

A state court’s determination that a claim lacks

15 merit precludes federal habeas relief as long as fairminded jurists
16 could disagree on the correctness of the state court’s decision.
17
Harrington v. Richter, 562 U.S. -, 131 S.Ct. 770, 786 (2011). Even
18
a strong case for relief does not render the state court’s
19
20 conclusions unreasonable. Id. To obtain federal habeas relief, a
21 state prisoner must show that the state court’s ruling on a claim
22 was “so lacking in justification that there was an error well
23
24
25
26

understood and comprehended in existing law beyond any possibility
for fairminded disagreement.”

Id. at 786-87.

The standards set by § 2254(d) are “highly deferential

27 standard[s] for evaluating state-court rulings” which require that
28 state court decisions be given the benefit of the doubt, and the
8

1 Petitioner bear the burden of proof.
2 S.Ct. at 1398.
3
4
5
6
7

Cullen v. Pinholster, 131

Habeas relief is not appropriate unless each ground

supporting the state court decision is examined and found to be
unreasonable under the AEDPA.

Wetzel v. Lambert, -–U.S.--, 132

S.Ct. 1195, 1199 (2012).
In assessing under section 2254(d)(1) whether the state court’s

8 legal conclusion was contrary to or an unreasonable application of
9 federal law, “review... is limited to the record that was before the
10
11
12
13

state court that adjudicated the claim on the merits.”
Pinholster, 131 S.Ct. at 1398.

Cullen v.

Evidence introduced in federal court

has no bearing on review pursuant to § 2254(d)(1).

Id. at 1400.

14 Further, 28 U.S.C. § 2254(e)(1) provides that in a habeas proceeding
15 brought by a person in custody pursuant to a judgment of a state
16 court, a determination of a factual issue made by a state court
17
shall be presumed to be correct; the petitioner has the burden of
18
producing clear and convincing evidence to rebut the presumption of
19
20 correctness. A state court decision on the merits based on a
21 factual determination will not be overturned on factual grounds
22 unless it was objectively unreasonable in light of the evidence
23
24
25
26
27
28

presented in the state proceedings.

Miller-El v. Cockrell, 537 U.S.

322, 340 (2003).
With respect to each claim raised by a petitioner, the last
reasoned decision must be identified to analyze the state court
decision pursuant to 28 U.S.C. § 2254(d)(1).
9

Barker v. Fleming, 423

1 F.3d 1085, 1092 n.3 (9th Cir. 2005); Bailey v. Rae, 339 F.3d 1107,
2 1112-13 (9th Cir. 2003).
3

Pursuant to § 2254(d)(2), a habeas petition may be granted only

4 if the state court’s conclusion was based on an unreasonable
5 determination of the facts in light of the evidence presented in the
6 state court proceeding.
7 (9th Cir. 2004).

Taylor v. Maddox, 366 F.3d 992, 999-1001

For relief to be granted, a federal habeas court

8 must find that the trial court’s factual determination was such that
9 a reasonable fact finder could not have made the finding; that
10 reasonable minds might disagree with the determination or have a
11 basis to question the finding is not sufficient.

Rice v. Collins,

12 546 U.S. 333, 340-42 (2006).
13

Here, the reasoned decision of the CCA was the last reasoned

14 decision on Petitioner’s claims.

Where there has been one reasoned

15 state judgment rejecting a federal claim, later unexplained orders
16 upholding that judgment or rejecting the same claim are presumed to
17 rest upon the same ground.
18 (1991).

Ylst v. Nunnemaker, 501 U.S. 797, 803

It will be presumed that the CSC’s summary denial of

19 Petitioner’s petition for review (LD 6) rested upon the same grounds
20 set forth in the CCA’s decision.
21

B.

The State Court’s Decision

22

The pertinent portion of the CCA’s decision is as follows:

23

I. Sufficiency of the Evidence on Count 2

24

Abdelaziz contends there is insufficient evidence to
support his conviction in count 2 for identity theft
because the evidence failed to establish he willfully
obtained the identifying information of another person.
Specifically, Abdelaziz asserts that because he learned
Mark Nelson's name and address as “part of the family
history with which he grew up,” he did not intentionally
obtain that information and therefore could not be

25
26
27
28

10

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

convicted of identity theft.
“Our duty on a challenge to the sufficiency of
the evidence is to review the whole record in
the light most favorable to the judgment for
substantial evidence—credible and reasonable
evidence of solid value—that could have enabled
any rational trier of fact to have found the
defendant guilty beyond a reasonable doubt.
(Jackson v. Virginia (1979) 443 U.S. 307, 318;
People v. Prince (2007) 40 Cal.4th 1179, 1251.)
In doing so, we presume in support of the
judgment the existence of every fact a
reasonable trier of fact could reasonably deduce
from the evidence. (Prince, supra, 40 Cal.4th at
p. 1251.) The same standard of review applies to
circumstantial evidence and direct evidence
alike.” (People v. Gutierrez (2009) 174
Cal.App.4th 515, 519.)
The trial court instructed the jury on section 530.5,
subdivision (a), FN3 in the language of CALCRIM No.2040,
in pertinent part, as follows: “The defendant is charged
in Count 2 with the unauthorized use of someone else's
personal identifying information, in violation of Penal
Code section 530.5(a). To prove that the defendant is
guilty of this crime, the People have to prove that: [¶]
One, the defendant willfully obtained someone else's
personal identifying information; [¶] Two, the defendant
willfully used that information for an unlawful purpose;
[¶] And three, the defendant used the information without
the consent [of] the person[ ] [whose] identifying
information he was using. [¶] Personal identifying
information includes a person's name and date of birth....
[¶] Someone commits an act willfully when he or she does
it willingly or on purpose. [¶] An unlawful purpose
includes unlawfully obtaining credit or goods, or evading
the process of the court in the name of the other person.”
FN3. Section 530.5, subdivision (a), provides in
pertinent part: “Every person who willfully
obtains personal identifying information, as
defined in subdivision (b) of Section 530.55, of
another person, and uses that information for
any unlawful purpose, including to obtain, or
attempt to obtain, credit, goods, services, real
property, or medical information without the
11

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

consent of that person, is guilty of a public
offense, ...”
Thus, in order to convict Abdelaziz of identity theft, the
jury was required to find that (1) Abdelaziz willfully
obtained the personal identifying information of Mark
Nelson; and (2) he used that information for an unlawful
purpose without Mark Nelson's consent. (See People v.
Tillotson (2007) 157 Cal.App.4th 517, 533.) Abdelaziz
challenges only the first element, arguing there is
insufficient evidence he “willfully obtained” Nelson's
personal identifying information. Citing People v. Lewis
(2004) 120 Cal.App.4th 837, 852,FN4 Abdelaziz asserts the
word “willfully” means “intentionally,” and reasons that
because he learned Nelson's name and birth date while he
and Nelson were growing up, he did not intend to obtain
the information but instead obtained the information
inadvertently.
FN4. The court in People v. Lewis explains that
“[t]he word “willfully” as generally used in the
law is a synonym for ‘intentionally,’ i.e., the
defendant intended to do the act proscribed by
the penal statute.” (People v. Lewis, supra, 120
Cal.App.4th at p. 852.)
Abdelaziz's argument is based on the assumption that
someone who learns a relative's name and birth date while
growing up does not intentionally obtain that information.
While it might not be possible to pinpoint an exact point
in time when that individual learned such information, it
is certainly reasonable to infer that at some point he or
she was told the relative's name and birth date, which he
or she then intentionally memorized. That obtaining the
name and birth date did not require any particular effort
on the individual's part other than remembering what was
said does not mean the individual did not obtain the
information intentionally. As the People point out, to
conclude otherwise would exclude from the statute's reach
personal information that one acquires through years of
knowing someone. Even if Abdelaziz learned Nelson's name
and birth date while growing up, he was not forced to do
so. The jury reasonably could conclude that by remembering
and using that information, Abdelaziz had obtained the
information intentionally. Before we can reverse the
judgment for insufficiency of the evidence, “it must
clearly appear that upon no hypothesis whatever is there
12

1
2
3
4

sufficient substantial evidence to support it.” (People v.
Redmond (1969) 71 Cal.2d 745, 755.) That is not the state
of the record here. Abdelaziz's insufficiency of the
evidence argument simply asks us to reweigh the facts.
(People v. Bolin (1998) 18 Cal.4th 297, 331–333.) That we
cannot do.

5 People v. Abdelaziz, no. F057903, 2010 WL 4461685, at *3-*4.
6
7

C.

Analysis

To determine whether a conviction violates the constitutional

8 guarantee of due process of law because of insufficient evidence, a
9 federal court ruling on a petition for writ of habeas corpus must
10 determine whether any rational trier of fact could have found the
11 essential elements of the crime beyond a reasonable doubt.

Jackson

12 v. Virginia, 443 U.S. 307, 319, 20-21 (1979); Windham v. Merkle, 163
13 F.3d 1092, 1101 (9th Cir. 1998); Jones v. Wood, 114 F.3d 1002, 1008
14 (9th Cir. 1997).
15

All evidence must be considered in the light most favorable to

16 the prosecution. Jackson, 443 U.S. at 319; Jones, 114 F.3d at 1008.
17
It is the trier of fact’s responsibility to resolve conflicting
18
testimony, weigh evidence, and draw reasonable inferences from the
19
20 facts. It must be assumed that the trier resolved all conflicts in
21 a manner that supports the verdict.
22 at 319; Jones, 114 F.3d at 1008.
23
24
25
26

Jackson v. Virginia, 443 U.S.

The relevant inquiry is not

whether the evidence excludes every hypothesis except guilt, but
rather whether the jury could reasonably arrive at its verdict.
United States v. Mares, 940 F.2d 455, 458 (9th Cir. 1991).

27 Circumstantial evidence and the inferences reasonably drawn
28 therefrom can be sufficient to prove any fact and to sustain a
13

1 conviction, although mere suspicion or speculation does not rise to
2 the level of sufficient evidence.
3
4
5
6

United States v. Lennick, 18 F.3d

814, 820 (9th Cir. 1994); United States v. Stauffer, 922 F.2d 508,
514 (9th Cir. 1990); see Jones v. Wood, 207 F.3d at 563.

The court

must base its determination of the sufficiency of the evidence from

7 a review of the record.
8

Jackson at 324.

The Jackson standard must be applied with reference to the

9 substantive elements of the criminal offense as defined by state
10
11
12
13

law.

Jackson, 443 U.S. at 324 n.16; Windham, 163 F.3d at 1101.

However, the minimum amount of evidence Due Process Clause requires
to prove an offense is purely a matter of federal law.

Coleman v.

14 Johnson, - U.S. -, 132 S.Ct. 2060, 2064 (2012) (per curiam).

For

15 example, under Jackson, juries have broad discretion to decide what
16 inferences to draw and are required only to draw reasonable
17
inferences from basic facts to ultimate facts. Id.
18
Under the AEDPA, federal courts must apply the standards of
19
20 Jackson with an additional layer of deference. Coleman v. Johnson,
21 - U.S. -, 132 S.Ct. 2060, 2062 (2012); Juan H. v. Allen, 408 F.3d
22 1262, 1274 (9th Cir. 2005).
23
24
25
26

This Court thus asks whether the state

court decision being reviewed reflected an objectively unreasonable
application of the Jackson standard to the facts of the case.
Coleman v. Johnson, 132 S.Ct. at 2062; Juan H. v. Allen, 408 F.3d at

27 1275.

The determination of the state court of last review on a

28 question of the sufficiency of the evidence is entitled to
14

1 considerable deference under 28 U.S.C. § 2254(d).

Coleman v.

2 Johnson, 132 S.Ct. at 2065.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

Here, the state court applied the Jackson standard in light of
the substantive requirements of state law.

A fairminded jurist

could conclude that the state court reasonably applied the Jackson
standard in determining that Petitioner’s acquisition of the name
and birthdate was intentional in view of his retention and use of
the information.

The state court correctly presumed that the trier

of fact resolved factual disputes and drew inferences in support of
the judgment.

To the extent Petitioner argues that correctional

officers knew Petitioner’s true identity, Petitioner fails to show
how such a circumstance renders the evidence insubstantial.
Accordingly, the Court will deny Petitioner’s claim concerning
the sufficiency of the evidence.
IV.

Denial of Motion for New Trial and Request for
Information relating to Juror Misconduct

Petitioner alleges that the trial court abused its discretion

18 and violated Petitioner’s right to a fair trial under the Sixth and
19 Fourteenth Amendments when, without granting an evidentiary hearing,
20 it denied Petitioner’s motion for a new trial based on the post21 verdict receipt of a juror’s note to the effect that other jurors
22 were not permitting her to express her views or to review evidence
23 during deliberations with respect to counts 1 (grand theft charged
24 and found) and 3 (robbery charged, jury found lesser included
25 offense of petty theft).

Petitioner alleges he was entitled to a

26 new trial based on juror misconduct, which was erroneously
27 determined to have been harmless by a state court that used the
28 wrong standard of prejudice.

Petitioner also alleges that the trial
15

1 court abused its discretion in determining that the juror’s note was
2 inadmissible hearsay evidence under the California Evidence Code or
3 inadmissible under state law to impeach the verdict.

(Doc. 1, 5;

4 doc. 4, 13-22.)
5

In a related claim, Petitioner alleges the trial court

6 infringed on his right to a fair trial by an impartial jury in
7 denying his request for juror contact information so counsel could
8 investigate the potential juror misconduct

Petitioner argues that

9 good cause had been shown for further investigation.

(Doc. 1, 5;

10 doc. 4, 23.)
A.

11
12

The State Court’s Decision

The pertinent portion of the state court’s decision is as

13 follows:
14
15

III. Denial of Hearing on Juror Misconduct and Request for
Juror Information

18

Abdelaziz contends the trial court abused its discretion
when it failed to conduct an evidentiary hearing on his
new trial motion claim of juror misconduct. He also
contends the trial court erred when it denied his
alternative motion for juror information.

19

A. Background

16
17

20
21
22
23
24
25
26
27
28

A little over an hour after the jury began deliberating on
Friday, May 15, 2009, the jury sent the trial court a note
requesting the testimony of Brockett and the officer who
responded to the December 28, 2007 incident, a video and
specific parts of Cox's and Silver's testimonies. The
jurors were called into court, where they each viewed the
requested video. The court then asked the jurors to return
to the jury room and discuss whether they wanted to hear
all, or only part, of the testimony of Brockett and the
officer, and then resubmit a request to the court
specifying the testimony they wanted to hear. The court
explained it could not comply with the request right away
because the court reporter was at a medical appointment,
but the reporter was expected back shortly and would be
16

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

advised of the request once she returned. The jury then
retired to continue deliberations.
By the time the court reporter returned about a half hour
later, the court had not received any further request for
readback of testimony. The court then sent a note to the
jury room asking the jury to specify the testimony it
wanted read back, and advising that the reporter was
present and would provide whatever was requested. A short
time later, the jury sent the court a request for the read
back of specific portions of the testimony of Cox and
Silver, and also asked whether the first count could be
“changed from grand to petty.” In response, the court sent
back a note referring the jury to the grand theft
instruction previously given on count 1. The court
reporter gave the requested readback in the jury room.
Within minutes after the readback was finished, the jury
advised the court it had reached a verdict.
After the verdicts were read, the court asked the
foreperson, Juror Number 9, if the verdict was unanimous.
Juror Number 9 responded: “It is.” The court then asked
the other jurors if that was correct, and they answered
“yes.” Both the prosecutor and defense counsel declined to
have the jury polled and waived polling as to all counts.
The court then ordered the clerk to record the verdicts.
Before discharging the jury, the court told the jurors
they were free to discuss the case with anyone, including
the attorneys, and ordered the record of personal juror
identifying information sealed. No juror remained to
discuss the case.
Sometime after the jury was discharged, Juror Number 10
gave a handwritten note to the court bailiff, which was
given to the court. The court turned the note over to
counsel the following Tuesday, May 19. The note read:
“While trying to determine my opinion on Count
# 1 grand theft [and] the robbery the (Juror # 11) &
(Juror # 2) refused (lashing out) to let me give an
opinion. She said that I was upset with her and anyone who
didn't hear me. The cowboy told me that I didn't like
[redacted] and that I felt that she was a lier [sic]. And
began to go back and forth with me about not liking her. I
told her that I was not here to make friends. That there's
a man's life in the balance and that I'm here to here
[sic] the facts and that I have the right to request (Josh
Brocketts) test[imony] and anyone else['s] test[imony]
17

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

because I have the right to no [sic] the facts. Every[
]time [sic] (she) read the laws or any fact she read it at
me. I felt very intimidated to give my opinion on count #
1 grand theft & count # 3 robbery.”
Abdelaziz filed a motion for a new trial on counts 1 and 2
only, based on juror misconduct or, in the alternative,
for juror information. Abdelaziz argued Juror Number 10's
note showed the juror was intimidated into rendering a
verdict on count 1, and the court had a duty of inquiry to
see if the guilty verdicts were the result of improper
actions of other jurors. Abdelaziz also contended the
court was required to grant the motion to unseal juror
information records so the factual issues in the note
could be explored. In an attached declaration, defense
counsel stated any confidential juror information provided
to his office would be provided only to counsel and staff,
not Abdelaziz, and any inquires would be made only for the
purpose of developing the motion for a new trial.
The prosecutor filed written opposition to the motion,
arguing there was no admissible evidence to support the
new trial motion because the juror's note was hearsay and
merely statements regarding the jurors' mental processes,
and even if admissible, the note showed minor misconduct
at best that did not warrant overturning the jury's
verdict. The prosecutor further argued additional inquiry
based solely on the note would lead to a fishing
expedition.

18
19
20
21
22
23
24
25
26
27
28

The motion was heard on June 15, 2009. Following oral
argument, the court first addressed the new trial motion.
The court noted it had considerable discretion in
determining whether to conduct any investigation, citing
People v. Prieto (2003) 30 Cal.4th 226, 274, and stated
the [note] appeared to be no more than a juror's
displeasure regarding the tenor of the discussion in
deliberations and did not rise to the level of further
inquiry. Employing the three-step process of People v.
Hord (1993) 15 Cal.App.4th 711, 724, in deciding whether
to grant a new trial based on juror misconduct, the court
found that (1) the note was inadmissible hearsay and did
not suffice to grant a new trial, (2) even if admissible,
it did not show misconduct, as it reflected the give and
take of heated discussions that often take place during
deliberations, and the court was confident the verdicts
returned were in accordance with the court's instructions
18

1
2
3
4
5

for the jurors to be courteous to each other and to
reflect the individual opinion of each juror, and (3) even
if misconduct occurred, it was not remotely prejudicial as
the evidence was sufficient and Abdelaziz derived a “very
favorable verdict” on count 3, which would not have
occurred if there was intimidation.

11

With respect to the alternative motion to disclose
personal juror information, the court denied the motion
after concluding a prima facie showing of good cause for
release of the information had not been made. The court
found the comments in the note merely reflected the
juror's subjective decision-making process and therefore
fell squarely within the provision of Evidence Code
section 1150, subdivision (a), which excludes from
consideration when inquiring into the validity of a
verdict the mental processes by which the verdict is
determined.

12

B. Failure to Hold Evidentiary Hearing

6
7
8
9
10

13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

While Abdelaziz concedes Juror Number 10's note was
insufficient by itself to warrant the granting of a new
trial, he contends the trial court was required to conduct
an evidentiary hearing on his new trial motion because the
allegations made in Juror Number 10's note, when
considered in light of the circumstances, established a
prima facie case of juror misconduct. Abdelaziz asserts
“[t]he circumstances suggest several possible areas of
misconduct [,]” including (1) other jurors refused to
deliberate with Juror Number 10 because they disagreed
with her, (2) other jurors refused to allow Juror Number
10 to listen to Brockett's testimony even though she
thought it was important to her decision in the case, or
(3) other jurors coerced her into changing her vote to
guilty.
Our Supreme Court recently explained the standards
applicable to a claim that the trial court was required to
conduct an evidentiary hearing on a claim of juror
misconduct: “The trial court has discretion to determine
whether to conduct an evidentiary hearing to resolve
factual disputes raised by a claim of juror misconduct.
(People v. Avila (2006) 38 Cal.4th 491, 604.) ‘Defendant
is not, however, entitled to an evidentiary hearing as a
matter of right. Such a hearing should be held only when
the court concludes an evidentiary hearing is “necessary
19

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

to resolve material, disputed issues of fact.” [Citation.]
“The hearing ... should be held only when the defense has
come forward with evidence demonstrating a strong
possibility that prejudicial misconduct has occurred. Even
upon such a showing, an evidentiary hearing will generally
be unnecessary unless the parties' evidence presents a
material conflict that can only be resolved at such a
hearing.” [Citation.]’ (People v. Avila, supra, 38 Cal.4th
at p. 604.) The trial court's decision whether to conduct
an evidentiary hearing on the issue of juror misconduct
will be reversed only if the defendant can demonstrate an
abuse of discretion.” (People v. Dykes (2009) 46 Cal.4th
731, 809–810 (Dykes).)
The only evidence before the court was Juror Number 10's
unsworn note. Assuming the note is even admissible
evidence,FN5 the trial court acted within its discretion
in declining to conduct an evidentiary hearing because the
note failed to demonstrate a strong possibility that
prejudicial misconduct occurred. While it appears that
deliberations in this case were not particularly
harmonious, jurors may disagree during deliberations and
express themselves vigorously, and even harshly, without
committing misconduct: “ ‘[J]urors can be expected to
disagree, even vehemently, and to attempt to persuade
disagreeing fellow jurors by strenuous and sometimes
heated means.’ [Citation.] During deliberations,
expressions of ‘frustration, temper, and strong
conviction’ may be anticipated but, in the interest of
free expression in the jury room, such expressions
normally should not draw the court into intrusive
inquiries.” (People v. Engelman (2002) 28 Cal.4th 436,
446.)
FN5. “[A] trial court does not abuse its
discretion in denying a motion for new trial
based upon juror misconduct when the evidence in
support constitutes unsworn hearsay.” (Dykes,
supra, 46 Cal .4th at p. 810; see also People v.
Cox (1991) 53 Cal.3d 618, 697, disapproved on
other grounds in People v. Doolin (2009) 45
Cal.4th 390, 421, fn. 22 (Cox) [unsworn
statement of a juror and an affidavit by an
investigator recounting the juror's statement to
him not competent evidence to support new trial
motion].)

28
20

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23

Here, when considered as a whole, the note reflected only
personality clashes between the jurors. Although Juror
Number 10 initially stated that two jurors refused to let
her [give] her opinion, she proceeds to recount the
ensuing conversation regarding whether she liked another
juror, states that she told the other jurors she had the
right to request testimony, and concludes the note with
the statement that she “felt very intimidated” to give her
opinion on counts 1 and 3. Significantly, she does not
state that she ultimately was unable to give her opinion,
that the jurors overruled any request she had for a read
back of testimony or that her treatment caused her to
change her vote on those counts. Evidence that other
panelists treated Juror Number 10 badly does not suffice
to establish prejudicial misconduct. (People v. Keenan
(1988) 46 Cal.3d 478, 541; People v. Ybarra (2008) 166
Cal.App.4th 1069, 1087; People v. Orchard (1971) 17
Cal.App.3d 568, 572–574.)
Abdelaziz acknowledges it takes more than heated debate to
establish misconduct, but asserts further investigation
was required because it reasonably can be inferred from
the circumstances that (1) Juror Number 10 was coerced to
change her vote, (2) other jurors refused to deliberate
with her, or (3) she wanted Brockett's testimony read
back. These assertions, however, are pure speculation and
fail to establish a strong presumption that prejudicial
misconduct occurred. As our Supreme Court has cautioned,
an evidentiary hearing into juror misconduct “should not
be used as a ‘fishing expedition’ to search for possible
misconduct.” (People v. Hedgecock (1990) 51 Cal.3d 395,
419.) Here, since there was no evidence that Juror Number
10 was deprived of the right to hear testimony or coerced
into changing her vote, the defense request for a hearing
in this case was precisely the type of fishing expedition
against which our Supreme Court cautioned. Accordingly,
the trial court did not abuse its discretion in refusing
to hold an evidentiary hearing.

24

C. Release of Juror Information

25

Abdelaziz next contends the trial court erred when it
denied his alternative request for juror contact
information. Once the jury's verdict is recorded in a
criminal proceeding, the court's record of personal
identifying information of trial jurors must be sealed
until ordered otherwise. (Code Civ. Proc., § 237, subd.

26
27
28

21

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

(a).) After that, the defense may “petition the court for
access to personal juror identifying information within
the court's records necessary for the defendant to
communicate with jurors for the purpose of developing a
motion for new trial or any other lawful purpose. This
information consists of jurors' names, addresses, and
telephone numbers. The court shall consider all requests
for personal juror identifying information pursuant to
Section 237.” (Code Civ. Proc., § 206, subd. (g).)
Code of Civil Procedure section 237, subdivision (b)
provides in pertinent part that “[t]he petition shall be
supported by a declaration that includes facts sufficient
to establish good cause for the release of the juror's
personal identifying information. The court shall set the
matter for hearing if the petition and supporting
declaration establish a prima facie showing of good cause
for the release of the personal juror identifying
information, but shall not set the matter for hearing if
there is a showing on the record of facts that establish a
compelling interest against disclosure.” (Italics added.)
The burden of establishing good cause lies with the
defense. (People v. Granish (1996) 41 Cal.App.4th 1117,
1131 (Granish).) The statute's language “indicate[s] a
legislative intent to require the defendant show good
cause of disclosure and not engage in merely a fishing
ex[ped]ition.” (People v. Wilson (1996) 43 Cal.App.4th
839, 852 (Wilson).)

18
19
20
21
22
23
24
25
26
27
28

The parties disagree on the applicable standard of review.
Abdelaziz asserts the trial court's good cause
determination is a mixed question of fact, i.e. the
juror's conduct, and law, i.e. the good cause standard,
which is subject to the reviewing court's de novo review,
citing Haworth v. Superior Court (2010) 50 Cal.4th 372,
383, and People v. Louis (1986) 42 Cal.3d 969, 984,
neither of which involved the issue of the standard of
review on a motion for disclosure of juror identifying
information. In contrast, the Attorney General contends
the appropriate standard of review is abuse of discretion,
citing People v. Jones (1998) 17 Cal.4th 279, 317 (Jones),
in which our Supreme Court stated it believed the abuse of
discretion standard of review should apply to such
motions. We need not decide which is the appropriate
standard because even if the trial court's decision is
subject to de novo review, it did not err.
22

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

The substantive test for determining whether good cause
has been established was set forth in People v. Rhodes
(1989) 212 Cal.App .3d 541, 549 (Rhodes). Although that
case was decided prior to the present enactment requiring
a showing of good cause (Jones, supra, 17 Cal.4th at p.
317; Townsel v. Superior Court (1999) 20 Cal.4th 1084,
1095 (Townsel)), the Rhodes test has been soundly held to
apply to the current statutory requirement. (People v.
Duran (1996) 50 Cal.App.4th 103, 115–123; Wilson, supra,
43 Cal.App.4th at pp. 949–852; Granish, supra, 41
Cal.App.4th at pp. 1126–1129; People v. Jefflo (1998) 63
Cal.App .4th 1314, 1321, fn. 8 (Jefflo).) FN6
FN6. We reject Abdelaziz's assertion that he was
required to show only that a trial juror is
willing to speak with defense counsel to
establish good cause. In support of his
position, he points to the general language in
Townsel that once “a juror consents to an
interview, no more need be shown, as [Code of
Civil Procedure] section 206, subdivision (a)
provides that jurors enjoy ‘an absolute right to
discuss ... the deliberation or verdict with
anyone.’ If a juror does consent to an
interview, respondent court would abuse its
discretion by requiring counsel to make a
showing of need or ‘good cause’ greater than the
desire to interview the juror for a lawful
purpose.” (Townsel, supra, 20 Cal.4th at p.
1097.) Townsel, however, goes on to state that,
“for verdicts returned after January 1, 1996,
the requirements of [Code of Civil Procedure]
section 237 [requiring good cause] would apply.”
(Townsel, supra, at p. 1098, fn.7.)
In Rhodes, supra, 212 Cal.App.3d 541, the court discussed
the competing interests of “maintaining the integrity of
our jury system, including encouraging public
participation in the process, fostering free and open
discussion among jurors, promoting verdict finality,
reducing incentives for jury tampering, and discouraging
harassment of jurors by losing parties eager to have the
verdict set aside.” (Id. at p. 551.) Striking a middle
ground to harmonize and satisfy these interests, the court
held that “upon timely motion, counsel for a convicted
defendant is entitled to the list of jurors who served in
23

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27

the case, including addresses and telephone numbers, if
the defendant sets forth a sufficient showing to support a
reasonable belief that jury misconduct occurred, that
diligent efforts were made to contact the jurors through
other means, and that further investigation is necessary
to provide the court with adequate information to rule on
a motion for new trial.” (Id. at pp. 551–552, italics
added.)
The misconduct must be “of such a character as is likely
to have influenced the verdict improperly.” (Evid.Code, §
1150, subd. (a); see Jefflo, supra, 63 Cal.App.4th at p.
1322.) A defendant has not met his burden if the
allegations of misconduct are vague, conclusory,
speculative, or unsupported. (Wilson, supra, 43
Cal.App.4th at p. 852.)
Applying these authorities, we find no error. Juror Number
10's allegations that other jurors spoke to her in a rude
and aggressive manner are inadequate as a matter of law to
show jury misconduct because they are not of such
character as are likely to have improperly influenced her
verdict. (Evid.Code, § 1150; Jefflo, supra, 63 Cal.App.4th
at p. 1322.) Significantly, the note does not state that
Juror Number 10 was pressured into changing her vote,
other jurors overruled her request for read back of
testimony, or she was unable to express her opinion.
Abdelaziz's assertion that Juror Number 10 “was
intimidated into surrendering her honestly-held belief
that [he] was not guilty of grand theft as charged in
count one,” is based on pure speculation and is therefore
inadequate to show good cause (Wilson, supra, 43
Cal.App.4th at p. 852), as is his suggestion that if Juror
Number 10 had been given an opportunity to discuss what
happened in the jury room with defense counsel, she “would
have been able to identify additional objectively
ascertainable overt acts of misconduct.”
Lastly, Abdelaziz contends denial of his motion for juror
contact information infringed on his right to a fair trial
by an impartial jury because the court was required to
conduct an investigation sufficient to satisfy itself that
he received a fair trial, citing Smith v. Phillips (1982)
455 U.S. 209, 215 (Smith), Remmer v. United States (1954)
347 U.S. 227, 229–230 (Remmer), and People v. Tuggles
(2009) 179 Cal.App.4th 339, 382–384 (Tuggles).

28
24

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

As the court explained in Tuggles, while the decisions in
Smith and Remmer affirm the right of criminal defendants
to a jury trial free from juror misconduct, “[w]e are
unaware of any case from the United States Supreme Court
or the appellate courts of the State of California holding
that any provision of the federal Constitution requires
the disclosure of the personal contact information of a
juror to the parties, their counsel, their
representatives, or members of the general public—even
upon a showing of a strong possibility of juror
misconduct.” (Tuggles, supra, 179 Cal.App.4th at pp. 383,
385.) Nevertheless, trial courts have inherent power,
apart from Code of Civil Procedure sections 206 and 237,
to manage inquiries into juror misconduct, and where the
court “is presented with a credible prima facie showing
that serious misconduct has occurred, the trial court may
order jurors to appear at a hearing and to answer
questions about whether misconduct occurred.” (Tuggles,
supra, 179 Cal.App.4th at pp. 385–386.) Thus, while Code
of Civil Procedure sections 206 and 237 allow jurors to
prevent the release of identifying information to the
parties and their attorneys, they “do not infringe upon
the trial court's inherent power to investigate strong
indicia of juror misconduct,” including issuance of
subpoenas compelling reluctant jurors to testify.
(Tuggles, supra, 179 Cal.App.4th at pp. 386–387; Cox,
supra, 53 Cal.3d at p. 700.)
Abdelaziz claims the trial court failed to fulfill its
responsibility to investigate juror misconduct. The trial
court, however, was not presented with a strong indicia
(sic) of juror misconduct and Abdelaziz failed to make a
sufficient showing for release of jurors' personal
identifying information. Accordingly, the trial court did
not err in not investigating the claimed misconduct
further or in denying his request for personal identifying
information.
People v. Abdelaziz, 2010 WL 4461685, at *6-*12.
B.

State Law Claims

To the extent Petitioner contends that the state court failed
properly to interpret or apply state law concerning jury misconduct,
new trial motions, or evidentiary hearings, Petitioner is not
entitled to relief in this proceeding.
25

Federal habeas relief is

1 available to state prisoners only to correct violations of the
2 United States Constitution, federal laws, or treaties of the United
3 States.

28 U.S.C. ' 2254(a).

Federal habeas relief is not

4 available to retry a state issue that does not rise to the level of
5 a federal constitutional violation.

Wilson v. Corcoran, 131 S.Ct.

6 at 16; Estelle v. McGuire, 502 U.S. at 67-68.

Alleged errors in the

7 application of state law are not cognizable in federal habeas
8 corpus.

Souch v. Schaivo, 289 F.3d 616, 623 (9th Cir. 2002).

9 Court accepts a state court's interpretation of state law.
10 v. Day, 110 F.3d 1180, 1389 (9th Cir. 1996).

The

Langford

In a habeas corpus

11 proceeding, this Court is bound by the California Supreme Court=s
12 interpretation of California law unless it is determined that the
13 interpretation is untenable or a veiled attempt to avoid review of
14 federal questions.

Murtishaw v. Woodford, 255 F.3d 926, 964 (9th

15 Cir. 2001).
16

Here, there is no indication that the state court’s

17 interpretation of state law was associated with an attempt to avoid
18 review of federal questions.

Thus, this Court is bound by the state

19 court’s interpretation and application of state law.
20
21

C.

Analysis

With respect to Petitioner’s claim that he suffered a violation

22 of his right to a fair trial by an impartial jury, under Supreme
23 Court precedent, the remedy for an allegation of juror misconduct is
24 a prompt hearing in which the trial court determines the
25 circumstances of what transpired, the impact on the jurors, and
26 whether or not the misconduct was prejudicial.

Remmer v. United

27 States, 347 U.S. 227 (1954) (trial court should not decide ex parte
28 an issue of potential jury tampering or outside influence arising
26

1 during trial, but rather should notify all parties and hold a
2 hearing in which all interested parties participate to determine the
3 circumstances, the impact upon the juror, and whether or not it was
4 prejudicial); Smith v. Phillips, 455 U.S. 209, 216–17 (1982) (due
5 process was satisfied by trial court’s holding a post-trial hearing
6 concerning a juror’s having applied for a job with the prosecuting
7 agency during the trial, noting that the trial court had the duty to
8 watch for and determine any prejudice from such an event, and
9 determination of the effect of such occurrences when they happen
10 “may properly be made at a hearing” such as that held by the trial
11 court in that case); Bell v. Uribe, 748 F.3d 857, 867 (9th Cir.
12 2014), cert. den. DeMola v. Johnson, 2015 WL 1280239 (Mar. 23, 2015)
13 (citing Smith).
14

However, clearly established federal law, as determined by the

15 Supreme Court, does not require state or federal courts to hold a
16 hearing every time there is an issue of jury misconduct that does
17 not involve jury tampering.
18 (9th Cir. 2003).

Tracy v. Palmeteer, 341 F.3d 1037, 1044

The Ninth Circuit Court of Appeals has described

19 the status of the law as follows:
20
21
22
23
24
25
26
27
28

Remmer and Smith do not stand for the proposition that any
time evidence of juror bias comes to light, due process
requires the trial court to question the jurors alleged to
have bias. Smith states that this “may” be the proper
course, and that a hearing “is sufficient” to satisfy due
process. 455 U.S. at 217, 218, 102 S.Ct. 940. Smith leaves
open the door as to whether a hearing is always required
and what else may be “sufficient” to alleviate any due
process concerns.
Indeed, our own cases have interpreted Smith and Remmer as
providing a flexible rule. As our colleague in dissent has
acknowledged, “[a]n evidentiary hearing is not mandated
every time there is an allegation of jury misconduct or
bias. Rather, in determining whether a hearing must be
27

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17

held, the court must consider the content of the
allegations, the seriousness of the alleged misconduct or
bias, and the credibility of the source.” Angulo, 4 F.3d
at 847 (Lay, J.) (emphasis in original and citation
omitted); see also United States v. Hanley, 190 F.3d 1017,
1031 (9th Cir.1999) (citing Angulo and holding that
“[h]ere, the district court did what it was required to
do. It considered the content and the seriousness of the
alleged statements [made by one juror during the trial
that allegedly showed bias] and properly determined that
such vague statements did not expose Defendants to unfair
prejudice. In the circumstances, the district court's
refusal to hold an evidentiary hearing was not an abuse of
discretion”); United States v. Langford, 802 F.2d 1176,
1180 (9th Cir.1986) (“While we recognize that where a
trial court learns of a possible incident of jury
misconduct, it is preferable to hold an evidentiary
hearing... not every allegation [of misconduct] requires a
full-dress hearing”); United States v. Halbert, 712 F.2d
388, 389 (9th Cir.1983) (affirming the district court's
refusal to hold a hearing regarding extraneous information
considered by a juror when the district court knew the
exact scope and nature of the information). We have also
held that Remmer's command that hearings are warranted in
every case is unique to the tampering context, where the
potential effect on the jury is severe. See United States
v. Dutkel, 192 F.3d 893, 894-95 (9th Cir.1999). Tampering
was not at issue in Tracey's case.

18 Tracy v. Palmeteer, 341 F.3d at 1044-45.
19

Here, there was no evidence of any tampering with the jury or

20 other external influence on the jury, and there was no indication of
21 any juror’s inability or failure to consider the evidence, engage in
22 deliberations, or apply the law.

Instead, the juror’s report

23 related merely to two other jurors’ expressions of disagreement with
24 the reporting juror and the latter’s feeling of intimidation in
25 expressing her opinion.

However, verdicts were returned on all

26 counts, and the verdict on the third count reflected a significant
27 reduction from a charged robbery to a petty theft.

Further, when

28 asked if the verdict was unanimous, the jurors responded in the
28

1 affirmative.

Before the verdicts were returned, the reporting juror

2 did not seek to report or obtain relief for any problem related to
3 deliberations.

The reference to being entitled to a rereading of

4 Brockett’s testimony is vague; the jury failed to specify any
5 particular part of the testimony to be reread or otherwise to follow
6 up with respect Brockett’s testimony, but other evidence was
7 submitted to and reviewed by the jury, and deliberations continued.
8 On the record before the trial court, it appeared that further
9 deliberations or consideration of other evidence resulted in a
10 decision by all the jurors to forego any further rereading of
11 testimony.
12

In light of the record before the state court, it was

13 objectively reasonable to conclude that the juror’s report did not
14 reflect misconduct or require any further investigation.

There is

15 no clearly established federal law requiring an investigation into
16 juror misconduct in these circumstances.

The evidence against the

17 Petitioner was also strong, and the verdicts were affirmed as the
18 verdicts of each and all of the jurors.

The ruling of the trial

19 court did not have any substantial or injurious effect on the
20 verdict.
21

Accordingly, the Court will deny Petitioner’s claim of absence

22 of a fair trial before an impartial jury resulting from a failure to
23 investigate jury misconduct or grant a new trial.
24

V.

Certificate of Appealability

25

Unless a circuit justice or judge issues a certificate of

26 appealability, an appeal may not be taken to the Court of Appeals
27 from the final order in a habeas proceeding in which the detention
28 complained of arises out of process issued by a state court.
29

28

1 U.S.C. ' 2253(c)(1)(A); Miller-El v. Cockrell, 537 U.S. 322, 336
2 (2003).

A district court must issue or deny a certificate of

3 appealability when it enters a final order adverse to the applicant.
4 Rule 11(a) of the Rules Governing Section 2254 Cases.
5

A certificate of appealability may issue only if the applicant

6 makes a substantial showing of the denial of a constitutional right.
7 ' 2253(c)(2).

Under this standard, a petitioner must show that

8 reasonable jurists could debate whether the petition should have
9 been resolved in a different manner or that the issues presented
10 were adequate to deserve encouragement to proceed further.

Miller-

11 El v. Cockrell, 537 U.S. at 336 (quoting Slack v. McDaniel, 529 U.S.
12 473, 484 (2000)).

A certificate should issue if the Petitioner

13 shows that jurists of reason would find it debatable whether: (1)
14 the petition states a valid claim of the denial of a constitutional
15 right, and (2) the district court was correct in any procedural
16 ruling.
17

Slack v. McDaniel, 529 U.S. 473, 483-84 (2000).

In determining this issue, a court conducts an overview of the

18 claims in the habeas petition, generally assesses their merits, and
19 determines whether the resolution was debatable among jurists of
20 reason or wrong.

Id.

An applicant must show more than an absence

21 of frivolity or the existence of mere good faith; however, the
22 applicant need not show that the appeal will succeed.

Miller-El v.

23 Cockrell, 537 U.S. at 338.
24

Here, it does not appear that reasonable jurists could debate

25 whether the petition should have been resolved in a different
26 manner.

Petitioner has not made a substantial showing of the denial

27 of a constitutional right.

Accordingly, the Court will decline to

28 issue a certificate of appealability.
30

1

VI.

Disposition

2

In accordance with the foregoing analysis, it is ORDERED that:

3

1)

The petition for writ of habeas corpus is DENIED;

4

2)

The Clerk is DIRECTED to enter judgment for Respondent; and

5

3)

The Court DECLINES to issue a certificate of appealability.

6
7
8 IT IS SO ORDERED.
9
10

Dated:

May 6, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
31