Gains v. Pliler, et al

Filing 45

ORDER signed by Judge Lawrence K. Karlton on 9/30/2011 ORDERING that 1 Petition for Writ of Habeas Corpus is DENIED; Request for Certificate of Appealability is GRANTED as to his juror misconduct claim and DENIED in all other respects. CASE CLOSED.(Waggoner, D)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT
8
FOR THE EASTERN DISTRICT OF CALIFORNIA
9
10

DARRION TROY GAINS,
NO. CIV. S-03-59 LKK/EFB P

11

Petitioner,

12

v.

13

SCOTT KERNAN, Warden,

14

O R D E R

Respondent.
/

15
16

I.

The Habeas Petition

17

Petitioner, a state prisoner proceeding pro se, has filed this

18

application for a writ of habeas corpus pursuant to 28 U.S.C. §

19

2254.

20

pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 302.

The matter was referred to a United States Magistrate Judge

21

On April 18, 2011, the Magistrate Judge filed findings

22

and recommendations herein which were served on all parties and

23

which contained notice to all parties that any objections to the

24

findings and recommendations were to be filed within twenty-one

25

days.

26

recommendations on June 24 and June 27, 2011. Respondent has filed

Petitioner

filed

objections

1

to

the

findings

and

1

no reply.

2

In

accordance

with

the

provisions

of

28

U.S.C.

3

§ 636(b)(1)(C) and Local Rule 304, this court has conducted a de

4

novo review of this case.

5

file, the court adopts the findings and recommendations, except for

6

the conclusion that Cook v. LaMarque, 593 F.3d 810 (9th Cir. 2010)

7

is the “law of the case.” Accordingly, the court writes separately

8

to more fully set forth its reasoning on the “juror misconduct”

9

issue.1

10

A.

11

The theory of petitioner’s defense during the criminal trial

12

was that the witnesses were mistaken in identifying him as a person

13

who was present at the crime scene.

14

defense was: “I was not there.”

15

that Gains and all the alleged conspirators stayed home watching

16

movies the night of the shootings.

Having carefully reviewed the entire

Background

In other words, petitioner’s

A co-defendant, Cook, testified

17

Three days into jury deliberation, Juror No. 12 revealed to

18

the other jurors that she had overheard the petitioner talking to

19

his lawyer during the testimony of Jose Gomez.

The juror heard

20
21
22
23
24
25
26

1

Cook v. La Marque, 593 F.3d 810 (9th Cir. 2010) is the Ninth
Circuit appeal of co-defendant Cook’s separate habeas petition.
The Ninth Circuit has held that separate appeals by co-defendants
convicted at the same trial are subject to law of the case. U.S.
v. Schaff, 948 F.2d 501, 506 (9th Cir. 1999). However, even in
successive habeas petitions by the same petitioner, the Ninth
Circuit has not applied law of the case. See Alaimalo v. U.S., 645
F.3d 1042, 1049 (9th Cir. 2011) (“Although it is clear that the law
of the case doctrine applies to subsequent proceedings on the same
habeas petition, this circuit has not applied it to claims in
successive habeas petitions”).
2

1

petitioner tell his lawyer “He’s lying.

Jose and I went this way,

2

and Kenny ran this way.” The import of this overheard conversation

3

was: “I was there, after all.”

4

undermined the whole theory of petitioner’s defense.

In other words, it completely

5

B.

Juror Misconduct

6

“Juror misconduct typically occurs when a member of the jury

7

has introduced into its deliberations matter which was not in

8

evidence or in the instructions.”

9

1574 (9th Cir.), cert. denied, 519 U.S. 889 (1996). “Jury exposure

10

to facts not in evidence deprives a defendant of the rights to

11

confrontation, cross-examination and assistance of counsel embodied

12

in the Sixth Amendment.”

13

Cir. 1995).

14

only if this constitutional error prejudiced him, that is, if it

15

“had ‘substantial and injurious effect or influence in determining

16

the jury’s verdict.’” Id. at 612, quoting Brecht v. Abrahamson, 507

17

U.S. 619, 638 & n.9 (1993).

Thompson v. Borg, 74 F.3d 1571,

Lawson v. Borg, 60 F.3d 608, 612 (9th

However, habeas relief is available to the petitioner

18

C.

Dissipation of the Potential Prejudice

19

The issue in this case is whether “‘the potential prejudice

20

of the extrinsic information was diminished’” sufficiently to avoid

21

actual prejudice.

22

Sassounian v. Roe, 230 F.3d 1097, 1109 (9th Cir. 2000).2

Cook v. La Marque, 593 F.3d at 827, quoting

23
2

24
25
26

This court has already determined that the “juror
misconduct” and presumed prejudice were sufficiently dissipated as
to co-defendant Cook to warrant denial of that defendant’s habeas
corpus petition. See Cook v. La Marque, 2008 WL 1701690, 2008 U.S.
Dist. LEXIS 29320 (E.D. Cal. April 9, 2008), aff’d, 593 F.3d 810
(9th Cir. 2010).
3

1

Petitioner correctly points out that the district court must

2

consider the nature of the extrinsic evidence. See Lawson v. Borg,

3

60 F.3d at 612.

4

petitioner’s defense, it was also in the nature of a confession.

5

Nevertheless, under the applicable standard, this court can

6

only grant habeas relief if it was unreasonable for the state court

7

to conclude that the prejudice was sufficiently dissipated or

8

diminished by the “overwhelming” evidence of Gains’ guilt, because

9

the overheard statement was “cumulative” of other evidence, and by

10

all the steps the court took to dissipate any potential (or

11

presumed) prejudice.

12

Effective Death Penalty Act); Ngo v. Giurbino, ___ F.3d ___, ___,

13

2011 WL 2675808 at *2, 2011 U.S. LEXIS App. 14166 at *4 (9th

14

Cir. July 11, 2011) (setting forth the standard for review of state

15

court habeas judgments).

16

Here, the extrinsic evidence not only undermined

See 28 U.S.C. § 2254(d) (Antiterrorism and

The evidence in the trial included three other confessions by

17

Gains.3

18

the crime, in another, Gains told a witness that he was the driver

19

when the crime was committed, and in yet another, Gains and Cook

20

told a witness that they “had gone to Kato’s house, kicked down the

21

door and started shooting.”

22

state court took to dissipate whatever potential prejudice might

23

have arisen from the overheard comment, including dismissing Juror

In one, Gains told a witness that he and Gomez committed

Considering also all the steps the

24
3

25
26

The pertinent evidence is set forth in the Findings and
Recommendations, and in the unpublished portion of People v. Cook,
et al., No. C-030492 at 64 (Cal. Ct. App., 3rd Dist. August
22, 2001) (Section V).
4

1

No. 12, the court concludes that it was not unreasonable for the

2

state

3

dissipated.

to

conclude

that

any

potential

prejudice

was

The petition is therefore DENIED.

4
5

court

II.

Certificate of Appealability

6

A.

Standard

7

Where,

as

here,

this

court

enters

an

order

adverse

to

8

petitioner, it “must issue or deny a certificate of appealability.”

9

Rule 11(a), Rules Governing § 2254 Cases.4

The certificate can

10

issue only if the applicant has made “a substantial showing of the

11

denial of a constitutional right.”

12

Medellin v. Dretke, 544 U.S. 660, 666 (2005).

28 U.S.C. § 2253(c)(2);

13

Where, as here, the district court denies the habeas petition

14

on substantive constitutional grounds, “[a] petitioner satisfies

15

this [Section 2253(c)(2)] standard by demonstrating that jurists

16

of reason could disagree with the district court's resolution of

17

his constitutional claims or that jurists could conclude the issues

18

presented

19

further.”

Miller-El

20

(reversing

the

are

adequate

denial

to

v.

deserve

Cockrell,

of

a

COA

encouragement
537
after

U.S.
the

322,

to
327

district

proceed
(2003)
court

21
4

22
23
24
25
26

A certificate of appealability, either from this court or
the Court of Appeals, is necessary before the petitioner can file
an appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S.
322, 336 (2003) (“until a COA has been issued federal courts of
appeals lack jurisdiction to rule on the merits of appeals from
habeas petitioners”); U.S. v. Washington, ___ F.3d ___, ___, 2011
WL 3437037 at *1, 2011 U.S. App. LEXIS 16337 at *3 (9th Cir. August
8, 2011) (“If the district court denies relief, the petitioner may
not appeal that denial without first obtaining a certificate of
appealability pursuant to 28 U.S.C. § 2253(c)(1)(B)”).
5

1

substantively rejected petitioner’s constitutional habeas claim);

2

Tennard v. Dretke, 542 U.S. 274, 282 (2004) (same); Allen v.

3

Ornoski, 435 F.3d 946, 951 (9th Cir.) (at the threshold, “[t]he

4

petitioner must demonstrate that reasonable jurists would find the

5

district court's assessment of the constitutional claims debatable

6

or wrong”), cert. denied, 546 U.S. 1136 (2006).5

7

B.

8

There is a clear Sixth Amendment violation where the jury is

9

Application

exposed “to facts not in evidence.”

Lawson v. Borg, 60 F.3d at

10

612.

Such exposure did occur in this case.

11

petition,

12

dissipated sufficiently to avoid actual prejudice.

13

jurists could disagree, however, whether the dissipation was

14

sufficient in this case.

15

reasonable jurists could disagree on the denial of the habeas

16

petition in this case.

17

III. CONCLUSION

however,

because

it

appears

The court denied the

that

the

exposure

was

Reasonable

Accordingly, the court finds that

18

1.

The petition for habeas corpus is DENIED.

19

2.

Petitioner’s request for a Certificate of

20
5

21
22
23
24
25

The standard is different when the district court does not
reach the constitutional grounds:
When the district court denies a habeas petition on
procedural grounds without reaching the prisoner's
underlying constitutional claim, a COA should issue when
the prisoner shows, at least, that jurists of reason
would find it debatable whether the petition states a
valid claim of the denial of a constitutional right and
that jurists of reason would find it debatable whether
the district court was correct in its procedural ruling.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).

26
6

1

Appealability is GRANTED as to his juror misconduct claim.

2

all other respects, petitioner’s request is DENIED.

3

IT IS SO ORDERED.

4

DATED: September 30, 2011.

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

In