King v. Hedgpeth

Filing 26

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Dale A. Drozd on 07/06/10 recommending that petitioner's application for a writ of habeas corpus be denied. Referred to Judge Garland E. Burrell. Objections due within 21 days. (Plummer, M)

(HC)King v. Hedgpeth

Doc. 26

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 vs. ANTHONY HEDGPETH, Respondent. / Petitioner is a state prisoner proceeding pro se with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2005 conviction in the Sacramento County Superior Court on charges of second degree murder and attempted murder with enhancements for use of a firearm in connection with those offenses. Petitioner is serving a sentence of seventy-five years to life in prison pursuant to that judgment of conviction. Petitioner seeks federal habeas relief on the following grounds: (1) his right to due process was violated by juror misconduct at his trial; (2) his appellate counsel rendered ineffective assistance in failing to raise the juror misconduct issues on appeal; and (3) his right to due process was violated by the giving of erroneous jury instructions at his trial. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied. 1
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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA DEMARKAS S. KING, Petitioner, No. CIV S-08-1524 GEB DAD P

FINDINGS & RECOMMENDATIONS

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PROCEDURAL AND FACTUAL BACKGROUND In its unpublished memorandum and opinion affirming petitioner's judgment of conviction on appeal1, the California Court of Appeal for the Third Appellate District provided the following factual summary: A jury found defendants Demarkas S. King, Ralph E. King, and Kenneth McClish not guilty of first degree murder, but guilty of second degree murder in the killing of Allen Qualls (count 1; Pen.Code, § 187, subd. (a); undesignated statutory references are to the Penal Code), and of the attempted murder of Michael Washington (count 2; §§ 664/187, subd. (a)).2 The jury also found that Ralph and McClish were felons in possession of a firearm (counts 3 & 4; § 12021, subd. (a)(1)).3 The jury further found as to counts 1 and 2 that Demarkas personally discharged a firearm causing great bodily injury or death (§ 12022.53, subd. (d)), that McClish personally used a firearm (§ 12022.53, subd. (b)), and that all defendants were armed in the commission of the offenses (§ 12022, subd. (a)(1)). The trial court found thereafter that McClish had two prior convictions for serious felonies (§§ 667, subds.(a), (b)-(i)) and had served three prior prison terms (§ 667.5, subd. (b)). All defendants received life terms in state prison. Ralph and McClish contend there is insufficient evidence to support their convictions on counts 1 and 2. Demarkas contends the trial court misinstructed the jury as to second degree felony murder, the intent required for second degree murder, imminent danger, imperfect self-defense, and aider and abettor liability; McClish raises a separate objection to the instruction on the last point. All defendants join in each others' contentions so far as applicable to themselves. Rejecting all of defendants' contentions, we shall affirm. However, we have detected errors in the abstract of judgment as to McClish and shall remand the matter to the trial court with directions to correct the errors.

Notice of Lodging Documents on June 25, 2009 (Dkt. No. 23), Resp't's Lod. Doc. No. 5 (hereinafter Opinion). To avoid confusion, we refer to Demarkas King and Ralph King (son and father respectively) by their first names.
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At trial, the parties stipulated that both defendants were convicted felons. 2

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FACTS In August 2003, Demarkas, his wife Tamica, and their small daughter lived on Sky Parkway in Sacramento County. Ralph and McClish lived in separate apartments at 5218 Martin Luther King Boulevard in the City of Sacramento, a bit north of Fruitridge Road; McClish lived with his girlfriend Lisa Knestrict and her aunt Betty Patterson, among others. Ralph's and McClish's building was about 600 feet from a Taco Bell at the corner of Martin Luther King Boulevard and Fruitridge Road; an open field separated the two buildings. On August 17, 2003, sheriff's deputies came to Demarka's apartment in response to a call. Tamica said that Demarkas, who was not there, had been in a fight. Demarkas did not contact the authorities. He later told the police, however, that after he heard banging on his front door and opened it, Michael Washington and others burst in and beat him up, then left. According to Thomas Ogle, Jr., the 17-year-old stepbrother of Tamica, while visiting the King family in the summer of 2003 he saw Ralph buy a black semiautomatic handgun, then later show it to Demarkas. In a police interview Ogle said the purchase took place the weekend before the charged crimes, but he testified that it might have been around July 4 because he remembered the Kings had had a barbecue. According to Betty Patterson, on August 19, 2003, she overheard Demarkas and Ralph talking outside Ralph's building. Demarkas said the police had learned of the assault on him but did nothing. Ralph said he did not want his family treated like that. On the morning of August 20, 2003, Patterson overheard Demarkas and Ralph talk about getting a gun. Ralph told Demarkas: "We have one gat, and we need another one." Demarkas said he knew where to get another one. Ralph said he would not let his family be disrespected, and Demarkas's attackers "didn't know who they were dealing with." Before August 20, 2003, Patterson heard McClish tell boys in the building that he had a gun; the boys later told Patterson they had seen it. McClish's girlfriend Lisa Knestrict testified that in July 2003 she discovered a black gun under the mattress on McClish's side of the bed and told him to get rid of it; he said he would.4

McClish was arrested on August 26, 2003. He told Knestrict before his arrest that his brother Rick had removed the gun from the apartment, but Knestrict was not sure whether McClish said so before or after the date of the crimes. 3

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Patterson told the police that she saw McClish's brothers remove a gun from under his mattress on August 25. At trial, however, she testified she heard this had happened but did not see it. At 10:21 p.m. on August 20, 2003, Demarkas called the sheriff's department from work to report that someone was kicking his apartment door while his wife was at home. The department responded to the call at 10:56 p.m., but found no evidence of a crime and left without filing a report. According to Patterson, McClish told her on the night of August 20 that Demarkas had called and would come over. Demarkas arrived around 11:00 p.m. and asked Patterson if McClish was home. As Patterson sat on a bench outside, she overheard Demarkas tell Ralph that "the guys were at Taco Bell" and "[w]e need to get over there now." Demarkas went upstairs and came back down with McClish, who carried a gray sweatshirt rolled up under his arm.5 Patterson and Jermal Lee, a teenage resident of the building, saw Demarkas or Ralph walking with McClish at the rear of the building. At around 11:30 p.m., Michael Washington and Allen Qualls were sitting in a primer-gray 1972 Chevrolet Nova in the Taco Bell drive-through at Martin Luther King Boulevard and Fruitridge Road. Qualls was the driver, Washington the passenger. Taco Bell employees and customers saw a man walk up to the Nova's passenger side, appear to speak, then pull out a black long-barreled gun and fire into the car. A second man was standing in the drive-through lane two cars behind the Nova. After pausing and looking back at him, the shooter fired more shots into the Nova. The two men then hopped over a concrete wall behind the restaurant. Eyewitnesses subsequently identified the shooter in photo line-ups and in court as Demarkas. They could not identify the second man, but described him as a heavy-set Black man around 5 feet 8 or 9 inches tall; two witnesses said he was wearing light or khaki shorts.6 The Nova pulled into a nearby gas station, where Qualls collapsed. Taken to University of California at Davis Medical Center, he was declared dead from a gunshot wound to the abdomen. Washington was operated on for lung damage from a gunshot that struck him in

Knestrict fell asleep that night at 9:30 p.m. She heard someone come to the door asking for McClish, who left the bedroom. McClish told her later it was Demarkas who had come to the door. The police later found khaki shorts and a gray sweatshirt in McClish's bedroom. At the time of the crimes, McClish, who stood 5 feet 9 inches tall, weighed 225 pounds. 4
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the back and shoulder. Investigating officers found six spent shells near the drive-through window and a projectile and bullet fragments inside the Nova. Another projectile was removed from Washington during surgery. A ballistics expert opined that the shells and projectiles were fired from the same nine-millimeter gun, at least some while the Nova was moving forward. No weapons or ammunition were found in the Nova.7 Betty Patterson and Jermal Lee, in separate positions outside their building, heard four or five shots from the direction of the Taco Bell. Patterson then saw three people climbing over a fence, heading toward the building from the nearby field. She recognized Ralph and Demarkas; the third, whose face she could not see, was wearing a gray sweatshirt like the one McClish had on when Patterson saw him in his bedroom soon after. According to Patterson, Ralph took a handgun out of his waistband and unloaded some shells, while saying, "We do this gangsta style." Ralph then said he was going to have a drink to calm his nerves and headed to his apartment. In subsequent days he repeated that he would not let anyone disrespect his family. Lee testified, as he had told an investigator for the district attorney's office, that after hearing shots he saw Ralph and McClish walking from the field toward the building, then saw Ralph unload the gun as he said, "They should not mess with my family." However, Lee also testified, as he had told McClish's former attorney, that McClish was with him outside the building when the shots were fired, and it was Ralph and Demarkas whom Lee saw coming toward the building. After the shooting, Demarkas drove to Oakland, then to San Diego. He crossed the border into Mexico, but was arrested on a murder warrant as he tried to reenter the United States. In custody, Demarkas was interviewed on videotape on August 28, 2003, by Sheriff's Detective Charles Husted. Portions of the interview were played for the jury. During the interview, after claiming ignorance of the crimes, Demarkas admitted he shot Washington (whom he called "Nova Mike") because he was "fed up" with Washington for threatening him and for assaulting him in his home. He had aimed only at Washington and did not know who else was in the Nova. He had

The police found baggies of marijuana in a paper bag in the car and $700 in cash on Washington. The prosecutor suggested Washington had been planning to sell marijuana at the Taco Bell. 5

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gotten the nine-millimeter handgun from his father's home after spotting Washington driving past. After Demarkas testified, the prosecution played other portions of his interview, which implicated the codefendants. Demarkas told Detective Husted that Ralph was standing at the concrete wall separating the Taco Bell from a day care center when Demarkas shot Washington, and McClish (whom Demarkas called "Uncle Ken") was in the drive-through area at the time. Ralph and McClish were present as Demarkas ran through the field to their building after the shootings; he gave the gun to Ralph en route. Demarkas knew McClish had a sawed-off .22-caliber rifle, but did not know if he had taken it to the Taco Bell. The prosecution also played portions of a taped interview of Ralph made on August 23, 2003, the date of his arrest. Ralph claimed he was walking across the field trying to catch up to Demarkas when the shots were fired. But later Ralph admitted he had followed Demarkas to the wall behind the Taco Bell, pulled himself up to look over it, and seen Demarkas standing by the Nova. Ralph saw Demarkas extend his arm toward the Nova, then heard three or four shots. After the interview, Ralph and Detective Husted went to the field and Ralph pointed out where he had climbed the fence. He also pointed out a water pipe he had stood on at the base of the seven-foot-high concrete wall, allowing him to peer over its top. Demarkas's defense Relying mainly on his own and his wife's testimony, Demarkas tried to prove that he acted alone out of provocation or in defense of himself and others. Tamica testified that on August 17, 2003, she heard fighting downstairs, then saw Demarkas getting up off the floor as Washington and another man ran out. Demarkas had a black eye and bruises the next day. On August 20, according to Tamica, she heard banging at her front door and at the back of the apartment. She called Demarkas at his job. He told her to get a gun out from under a couch cushion downstairs; she put it under her pillow in the bedroom. Demarkas returned around 10:30 p.m. with Ralph. The family decided to spend the night at Ralph's building, where Tamica's mother also lived. Tamica testified that as she went up to her mother's apartment, Demarkas and Ralph stayed downstairs. She heard shots. Demarkas later came into her mother's apartment and told Tamica: "I just killed them [both]." Demarkas went to Ralph's apartment, 6

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then drove off in Ralph's Ford. She saw and spoke to him the next day in the Oakland area.8 In Oakland he told her McClish had accompanied him to the Taco Bell. Ralph had joined them en route; though he could not climb over the wall, he got in position to see over it. Ralph had instigated Demarkas's actions, saying, "You got to do what you got to do." Both Demarkas and McClish had had guns that night. Demarkas testified that he and Washington had been friends, but in the summer of 2003 Washington inexplicably turned against him. After repeatedly threatening in public to beat him up, Washington came to Demarkas's home and attacked him when he opened the door. Washington was accompanied by at least two people who forced their way in and joined in the attack. Washington also kicked Demarkas's six-year-old daughter to the floor. Afterward, Demarkas walked to Ralph's place and told him he had been attacked by "Nova Mike and his partner." His eye was swollen and discolored, and his pain forced him to miss a day of work. That day, he retrieved a loaded gun from his father's place. On the evening of August 20, hearing at work from Tamica that "those guys came back" and were pounding on the door, Demarkas advised her to get the gun, take it upstairs, and lock the door. He called the police, describing Washington and the Nova; then he called Ralph to get a ride home from work. He reported his prior beating to the officers when he got home and showed them footprints and dents on the door, but they said they could do nothing because the culprits had fled. After they left, according to Demarkas, he got the gun Tamica had taken upstairs and put it in his pants pocket. He told his family to ride with Ralph to Ralph's building while he drove there separately. Spotting the Nova in the Taco Bell parking lot, then seeing Washington and others standing near it, Demarkas decided to walk over there armed without telling Ralph. According to Demarkas, he crossed the field alone, jumped a fence, and climbed a concrete wall at the back of the Taco Bell site. Walking up to the Nova, he called Washington's name; Washington smirked and turned away. It looked as though he was reaching for something. Stepping back and feeling scared, Demarkas heard a "loud pop," then "just jumped back and pulled my gun and started firing." He returned to Ralph's building the way he had come, dropping his gun as he ran through the field. He

On cross-examination, Tamica said she saw Demarkas look toward the Taco Bell as he was driving to Ralph's building. When they reached the building, he said to her: "Them niggas' [sic] are at Taco Bell." Ralph told her after the fact that he had handed Demarkas a gun. Demarkas admitted after the fact he had fired into the Nova "to kill them." 7

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saw Ralph walking along Martin Luther King Boulevard. According to Demarkas, as he returned to the building, Tamica and McClish approached him. He told Tamica and her mother what he had done, then went to Ralph's apartment and told him. Ralph gave him some clothes and loaned him a car to drive to Oakland. After Tamica visited him there, he drove to Mexico, then was arrested while trying to reenter the United States.9 Ralph's defense

6 7 8 9 10 11 12 13 14 15 McClish's defense 16 17 18 19 20 21 22 23 24 25 26 On cross-examination, Demarkas denied that Ralph and McClish had gone with him to the Taco Bell, that Ralph had given him a gun and encouraged him to shoot Washington, that he had called McClish and gone to his apartment that night, that he had asked McClish to come as a back-up, and that he had given the gun to Ralph after the shootings. He also denied that he had told Detective Husted anything different. He admitted, however, that he had lied to Husted on a number of points. He also admitted he did not see a gun inside the Nova at the time of the shootings, and shot at the car as it was moving. Chase also testified, however, that he gave the gun to McClish 45 days before the shooting and McClish had it for about a month and a half. 8
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Ralph did not testify, but tried to prove he did not participate in the crimes and could not have done so. A chiropractor who treated Ralph for a back injury incurred on July 23, 2003, testified that Ralph had "moderate to severe problems" with movement. (The parties stipulated that Ralph had also undergone back surgery following a workplace injury 20 years before.) The chiropractor conceded, however, that thanks to his treatments Ralph "most likely" could have climbed a five-foot-high fence by August 20, 2003. Ralph's girlfriend testified she spent the evening of August 20, 2003, with him, celebrating her birthday and helping him unpack in the new apartment he had just moved into from another one in the building. According to her, he got a phone call and left his apartment around 10:30 p.m., then returned 30 to 45 minutes later; however, she never saw him with a gun that night.

McClish also did not testify but tried to refute evidence of his involvement. Othello Chase testified that he had given McClish a .22-caliber sawed-off rifle as collateral for a loan, but reclaimed it three or four weeks before the shootings.10 McClish's brother Rodney testified that, contrary to Betty Patterson's account, he did not remove a gun from under McClish's bed on August 25, 2003, and could not have done so because he was in Green Bay, Wisconsin, visiting his children that week; the children's mother

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corroborated that testimony.11 To rebut Patterson's claim she saw McClish carrying a wrapped-up sweatshirt on the night of the crimes, he played a portion of a taped interview in which she seemed to say she had merely heard others alleging this. Petitioner appealed from his conviction to the California Court of Appeal for the Third Appellate District. On October 19, 2006, the judgment of conviction was affirmed. (Resp't's Lod. Doc. 5.) On November 20, petitioner filed a petition for review with the California Supreme Court. (Resp't's Lod. Doc. 6.) On February 7, 2007, the California Supreme Court summarily denied the petition for review. (Resp't's Lod. Doc. 7.) On September 13, 2007, petitioner filed a petition for writ of habeas corpus in the Sacramento Court of Appeal, raising claims of juror misconduct and ineffective assistance of appellate counsel. (Resp't's Lod. Doc. 8.) On September 20, 2007, the California Court of Appeal summarily denied that petition. (Resp't's Lod. Doc. 9.) On October 15, 2007, petitioner filed a habeas petition in the California Supreme Court, raising the same claims that he raised in his habeas petition filed in the California Court of Appeal. (Resp't's Lod. Doc. 9.) On August 23, 2007, the Supreme Court denied that petition with a citation to People v. Duvall, 9 Cal.4th 464, 474 (1995). (Resp't's Lod. Doc. 11.) On July 2, 2008, petitioner filed his federal habeas petition. (Dkt. No. 1.) Respondent filed an answer on February 18, 2009. (Dkt. No. 18.) On June 5, 2009, petitioner filed a motion for leave to file a first amended petition and a late "reply" to respondent's answer, along with his amended petition and reply. (Dkt. Nos. 19, 20, 21.) On March 19, 2010, this court granted petitioner's motion, deemed the amended petition to be the operative pleading in this matter, and granted respondent leave to file either an amended answer or a surreply brief

On cross-examination, the prosecutor played the tape of a jail phone call McClish placed to his mother and Lisa Knestrict on August 26, 2003, in which Knestrict says Rodney is "right here." Rodney claimed "right here" meant in Green Bay on a three-way connection. 9

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within forty-five days. (Dkt. No. 24.) Respondent filed an amended answer on May 3, 2010. (Dkt. No. 25.) ANALYSIS I. Standards of Review Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972). This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief: 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 (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review 10

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of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised."). The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003). II. Petitioner's Claims A. Juror Misconduct Petitioner claims that juror misconduct violated his right to a fair trial. He describes his claim as follows: Juror misconduct: juror number 7 concealed during voir dire that he was the victim of the crime of child molestation and brought into deliberations extraneous outside information from his own experience at a different "Taco Bell"; juror number 4 concealed information that she had a working relationship with and communication from a [member] of one of the victims (Qualls) family [members] until after the trial." (Am. Pet. filed June 5, 2009 (hereinafter Am. Pet.) at 6(a).) 11

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Petitioner's claims regarding Juror #4 and his claim that Juror #7 brought extraneous information into the jury room were raised for the first time in petitions for a writ of habeas corpus filed by petitioner in the California Court of Appeal and the California Supreme Court. (Resp't's Lod. Docs. 8, 10.) In support of his allegations, petitioner attached a declaration by Juror #4, in which she made various allegations about the conduct of petitioner's trial. (Id., Ex. A.) The California Court of Appeal rejected these claims brought by petitioner on the merits. (Resp't's Lod. Doc. 9.) The California Supreme Court denied petitioner's application for habeas relief in which these claims were raised with a citation to People v. Duvall, 9 Cal.4th 464, 474 (1995). (Resp't's Lod. Doc. 11.)12 Respondent argues that these claims have not been exhausted in state court because they were rejected by the California Supreme Court on a procedural ground with a citation to the decision in Duvall reflecting that petitioner may not have stated his claims with sufficient particularity. (Answer at 10-13.) In addition to raising an exhaustion defense, respondent urges that relief with respect to these claims be denied on the merits. (Answer at 1328.) The court may deny a federal habeas corpus claim on the merits notwithstanding a petitioner's failure to exhaust state court remedies. See 28 U.S.C. § 2254(b)(2). Assuming arguendo that petitioner's claims of juror misconduct have not been exhausted, for the reasons explained below this court will recommend that relief be denied on the merits. Because the California Supreme Court rejected petitioner's arguments on procedural grounds, this court will review the claims of juror misconduct de novo. Nulph 333 F.3d at 1056. ///// /////

Petitioner's allegation that during jury selection Juror #7 had concealed the fact that he had been the victim of child molestation does not appear to have been presented to any California court. 12

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1. Background The state court record reflects that a questionnaire given to jurors during voir dire asked, among other things, whether they or anyone close to them had ever been a witness to or the victim of a crime. (Resp't's Lod. Doc. 23 at 148-49.) Juror #7, the foreperson, responded that in 1996 his car was stolen and that he had never been a witness to a crime. (Id.) Another question on the form asked whether the juror or anyone close to him/her had "ever had a memorably good or bad experience with a law enforcement officer?" (Id. at 150.) Juror #7 responded to this question by writing "personal," which indicated that he wished to discuss this issue privately with the trial judge. (Id.) Several days later, the trial judge questioned Juror #7 individually about the matter he wished to discuss privately. (Resp't's Lod. Doc. 24 at 93-94.) Juror #7 told the judge that he was "trying to remember" why he had marked "personal" on the form, and finally explained that after his car was stolen in 1996, the police officer remained with him while he waited for a tow truck. (Id.) He further stated that the incident would not cause him to favor the testimony of police officers. (Id. at 94.) On May 18, 2005, the day after the verdicts were announced, Juror #7 contacted the prosecutor and informed him that, although he had forgotten when he was questioned by the trial judge why he had answered "personal" on the juror questionnaire, he later recalled that what he had actually wanted to discuss was that when he was thirteen years old he had been molested by a school bus driver. (Resp't's Lod. Doc. 21 at 111-12.) Juror #7 informed the prosecutor that "it was both a good and bad experience" because, although he was forced to report the conduct, the bus driver later admitted the conduct. (Id. at 112.) He explained that when he was called in to talk to the trial judge about his answer on the questionnaire, he was surprised to see all of the attorneys and defendants in the room and suddenly could not remember what he had wanted to discuss in private. (Id. at 111.) Juror #7 further stated that he thought about reporting his recollection of the incident to the court, but decided that "it did not seem significant to the issues in the case." (Id.) He also stated that the prior incident "did not affect his judgment in this case." 13

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(Id.) The prosecutor informed all defense counsel about his conversation with Juror #7 in a letter dated May 20, 2005. (Id. at 111-12.) On May 27, 2005, petitioner filed a motion for new trial. (Id. at 100-17.) Attached to the motion was the May 20, 2005 letter from the prosecutor outlining his conversation with Juror #7. (Id. at 111-12.) Also attached was a declaration from Juror #4. (Id. at 109-10.) Therein, Juror #4 declared that: (1) prior to deliberations she had discussed the facts of the case with the sole alternate juror; (2) the fact that Michael Washington was not called as a witness was discussed during deliberations; (3) Jurors #5, #7, and #8 performed improper experiments during the jury viewing of the crime scene and discussed those experiments during deliberations; (4) Juror #7 discussed his own experience at another Taco Bell during deliberations; (5) her request to view the jury forms was denied by jurors #7 (the jury foreman) and #1, and the verdicts read aloud by the court clerk were not "correct as agreed by the jury;" (6) she discussed the facts of the case with Juror #2 outside the presence of the other jurors; and (7) she recognized a family member of the victim during the trial, which "affected [her] ability to sit as a fair and impartial juror." (Id.) The prosecutor filed an opposition to the motion for new trial on June 7, 2005. (Resp't's Lod. Doc. 22 at 1725.) Attached to the opposition was the declaration of Juror #7, who stated that: (1) after one of the other jurors asked why Michael Washington was not called as a witness, he told the juror that "we could not discuss that fact;" (2) the only experiment conducted at Taco Bell was when the jurors stood on a pipe alongside a cement wall, in the location where Ralph King had allegedly been standing while the crime took place, to see what was visible of the drive-through window where the shooting occurred; (3) at one point during deliberations, Juror #7 told the other jurors that once when he was at a Taco Bell drive-through late at night, he observed two teenagers "running up to the drive through area and enter a car immediately behind me in the drive through lane;" and (4) Juror #4 was not denied the opportunity to view the verdict forms, and "all twelve jurors agreed upon the verdicts, which were the verdicts stated in court." 14

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(Id. at 1745-47.) Also attached to the prosecutor's opposition brief was the declaration of Juror #1, who stated that: (1) the issue of Michael Washington being called as a witness was mentioned "only in the context that we could not speculate as to the reason why he was not called as a witness;" (2) although Juror #7 mentioned that he saw someone walk up to the drive through lane at a Taco Bell late at night, "he never linked that observation to the facts of this case and we never discussed his observations any further; (3) Juror #4 was not denied the opportunity to review the verdict forms; and (4) "the verdicts as read aloud by the court clerk were correct and were the verdicts the jury unanimously agreed upon in this case." (Id. at 1742-43.) The trial court conducted a three day hearing on petitioner's motion for new trial. (Resp't's Lod. Doc. 19 at 2650, et seq.) The judge first addressed the allegation of Juror #4 that she was not allowed to review the jury verdicts and that the verdicts read in court were not agreed upon by the jury as a whole. (Id. at 2650.) The judge noted that the verdicts were read to the jury in open court; that the jurors were polled on whether the verdicts were what had been agreed to; and that all jurors, including Juror #4, agreed that "that was their verdict." (Id.) Because the verdicts were recorded and therefore "complete" under California law, the trial court rejected petitioner's argument that he should be granted a new trial because the verdicts were not what the jury had agreed to. (Id. at 2651.) The trial court also concluded that the jurors' discussion about the fact that Michael Washington was not called as a witness did not result in prejudice to the defendants because the jurors had been instructed that the parties need not produce all witnesses and evidence suggested by the evidence. (Id.) Accordingly, petitioner's motion for new trial on this ground was denied as well. (Id.) Next, the trial judge addressed Juror #4's allegation that Juror #7 discussed his experiences at a different Taco Bell during the deliberations on this case. (Id.) The judge concluded that Juror #7's remarks about what he had observed at another Taco Bell drive-through line concerned merely a "life experience," and that they "did not rise to the level where it prejudiced these defendants in any regard nor did it bring in any independent, 15

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extraneous, relevant and material information that would deny these defendants of fair trial rights." (Id. at 2652.) The trial court also concluded that the conduct of the jurors at the crime scene when they looked at the Taco Bell from the location where Ralph King was standing was not inappropriate because it was "a view of the scene that was within the range of evidence;" it was appropriate to discuss during deliberations what the jury had seen at the crime scene; and there were no actual "experiments" conducted in the jury room during deliberations. (Id. at 2652-53.) Accordingly, the court denied the motion for new trial with respect to petitioner's argument that the jurors conducted improper experiments in the jury room or at the crime scene. (Id. at 2653.) The trial court also addressed Juror #7's failure to disclose that he had been molested by a truck driver when he was 13 years old. The judge noted that the molestation was "not the type of crime that [the defendants] are charged with;" he found that "there is no relationship in terms of materiality," and "it happened when [Juror #7] was youthful;" and he concluded that he was "impressed from the affidavits that it is an unintentional concealment and unintentional nondisclosure that wouldn't reflect a state of mind that would prevent him from acting impartially." (Id. at 2677-78.) Accordingly, the motion for new trial on the ground that Juror #7 committed misconduct when he failed to reveal this incident during voir dire was also denied. The trial judge then conducted a hearing on the other matters contained in the affidavit of Juror #4. In this regard, the court heard testimony from ten jurors, including Juror #4 and the sole remaining alternate juror. Juror #4 testified that the main focus of her conversations with Juror #2 concerned the fact that she recognized Sheila Qualls, a family member of Allen Qualls, when Ms. Qualls attended the trial for part of one day. (Id. at 2657-62.) Ms. Qualls ran out of the courtroom crying and Juror #4 saw her in the hallway and in the elevator. (Id.) She recognized Ms. Qualls, and believed that Ms. Qualls recognized her, but she could not place Qualls' name until the next 16

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day. (Id.) She stated that she worked with Sheila Qualls for two or three years at the Sacramento Bee approximately six years before and that, while they "weren't that close," she "liked her a great deal." (Id. at 2657-58, 2664.) She also stated that she was Qualls' "union rep, and I helped her with salary issues." (Id. at 2662.) With respect to the impact that it had on her when she saw Ms. Qualls, Juror #4 explained Yeah, it affected me that there was a face now. There was an obligation, I felt, to consider the family's loss, and it really bothered me, and that was, I feel, the biggest boo boo . . . (Id. at 2658.) She stated that after she saw Ms. Qualls, "it had a whole different emotional level to it than I was able to escape from it." (Id. at 2665.) She stated that she was then more willing to convict petitioner of second degree murder, whereas before she saw Ms. Qualls she had been "firmly for voluntary manslaughter." (Id. at 2666, 2671.) She further stated that after she recognized Ms. Qualls in the courtroom, it affected her decision "for a more serious crime than a less serious crime." (Id. at 2671.) She explained that she wanted to discuss with the jury the option of convicting petitioner of involuntary manslaughter, but that option was not legally available and she "was ridiculed by saying it" and was "mocked and mimicked by the Greek choir at the end of the table." (Id. at 2688.) Juror #4 also testified that she didn't remember how she knew Sheila Qualls when she saw her in the courtroom, but her name "came to [her]" later. (Id. at 2661.) She told Juror #2 and an alternate juror that maybe she should "step down" as a juror. (Id. at 2661-62.) She also testified that she "got fairly close with [Ms. Qualls]," and that they "visited quite a bit at the Bee and outside." (Id. at 2663.) Juror #4 testified she discussed with Juror #2 that they "didn't feel there was any evidence against Kenneth McClish anyway so far." (Id.) This issue was also discussed during deliberations, as was the credibility of some of the witnesses. (Id. at 2658-59, 2669-70.) She further testified that she discussed the testimony of witnesses and the facts of the case with several other jurors before deliberations began. (Id. at 2673-76, 2679-82.) She stated that 17

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Rodney McClish, brother and witness for Ken McClish, approached her, Juror #2, and Juror #10 outside the courthouse and informed them that his testimony about the gun was "the truth." (Id. at 2659-60, 2670.) Juror #4 did not tell the other jurors during deliberations about Rodney McClish's comments to her and the other two jurors. (Id. at 2677.) She also testified she was told by other jurors that she would be "reported" to the trial judge if she didn't cooperate. (Id. at 2693-95.) The alternate juror testified that she and Juror #4, along with other jurors, discussed the facts of the case prior to and outside of jury deliberations. (Id. at 2697, 2700-07.) Specifically, they talked about the credibility of the witnesses and why Michael Washington hadn't testified. (Id. at 2698.) Juror #4 told the alternate that she thought she recognized a lady she saw in the courtroom and on the elevator, but that she couldn't remember her name or why she knew her. (Id. at 2699.) The next day, Juror #4 stated that she had remembered she used to work with the lady, that her name was Sheila Qualls, and "she didn't know what she was supposed to do about that." (Id.) Juror #4 told the alternate that she couldn't be fair because of this. (Id. at 2700.) The alternate juror explained: It did change things for her because it put a personal face on the family for her because this was someone that she knew and she liked, and that she ­ she was ­ she didn't know what to do. She was very conflicted about what to do about that and that's when I told her ­ and I did tell her that if she was concerned about how procedurally with the Court, that she needed to talk to him about it because he could help her with her ­ with the conflict that she had. Q. And then she basically said she couldn't be fair because of that, because of knowing Sheila? A. I would say she didn't say that she couldn't be fair, but she was very concerned that her whole ­ it changed how she felt about the trial. I can say that. I can't say that she came out and said she couldn't be fair. I think she worried about ­ she just worried about it. She was concerned about it. She didn't want to go into deliberations knowing this person changed everything about the trial for her. ///// ///// 18

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(Id. at 2709-10.)13 Juror #7 testified that Juror #4 did not tell other jurors during deliberations that Rodney McClish had approached her about his trial testimony. (Resp't's Lod. Doc. 19 at 2716.) He denied threatening to "turn in" Juror #4 and stated that Juror #4 deliberated and expressed her views during deliberations. (Id. at 2717-18.) He stated that one juror suggested to Juror # 4 that she was failing to deliberate in good faith, but no juror threatened to turn her in for failing to deliberate. (Id. at 2718.) He also stated that none of the jurors discussed the case with each other outside of the deliberation process. (Id.) Juror # 5 testified that he did not discuss the case outside of the deliberation process and did not hear anyone else do so. (Id. at 2729.) He stated that Juror #4 was allowed to "speak her peace [sic] and participate in the deliberations." (Id.) He was not informed, and did not know, that Juror #4 had recognized someone in the courtroom who was related to one of the victims. (Id. at 2730.) Juror #8 also testified that he did not discuss the case outside of the deliberation process and did not hear any other juror do so. (Id. at 2733.) He testified that Juror #4 was able to and did fully participate in the deliberation process. (Id.) He was not informed, and did not know, that Juror #4 had recognized someone in the courtroom who was related to one of the victims. (Id. at 2734.) He never threatened to report Juror #4 to the judge for being uncooperative during the deliberation process. (Id.) He did not hear Rodney McClish inform any juror that he had told the truth during his testimony. (Id. at 2735.)

The alternate juror submitted a "supplemental declaration" to the trial court, apparently while the hearing on the motion for new trial was ongoing. (June 5, 2009 "Reply to Answer" (hereinafter Traverse), App. A.) The declaration states that the wife and brother of Juror #7 sat in the courtroom during the testimony of Juror #4 and then reported to the rest of the jurors what Juror #4 had said. (Id.) The declaration also: (1) describes the reaction of the other jurors to the reported testimony of Juror #4; (2) states that one juror reminded the other jurors that they should have learned from the trial "to answer questions posed to them as `yes' or `no,' and when in trouble, to use the words `I don't recall;'" and (3) states that the family of the victim became agitated and stared at the jurors as the hearing went on. (Id.) 19

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Juror #12 agreed that neither he nor any other juror discussed the case outside of the deliberation process. (Id. at 2741, 2745-46.) He testified that Juror #4 was allowed to deliberate with the other jurors and that she did not inform him that she might have been acquainted with a person in the audience who may have been related to one of the victims. (Id. at 2742.) Juror #4 did not tell him that one of the witnesses in the case had approached her and made a comment regarding his testimony at trial. (Id.) He never threatened to report Juror #4 for being uncooperative during the deliberation process, nor did he hear any other juror threaten to do this. (Id. at 2742-43.) Prior to her testimony, Juror #2 submitted an affidavit to the trial court in which she stated that Juror #4 told her she knew someone in the audience who was related to the victim. (Id. at 2747.) She testified that Juror #4 told her this "once, maybe twice." (Id.) She stated that Juror #4 did not express any particular concern about this, nor did she tell Juror #2 why she was telling her about it. (Id. at 2751.) This knowledge did not influence Juror #2 "in terms of any decision [she] might have made in the case." (Id. at 2748.) Juror #2 stated that she did not discuss the case with the other jurors outside of the deliberation process. (Id.) She agreed that "witness comments were made" between the jurors but she did not remember any specifics of those comments. (Id. at 2749.) She testified that Juror #4 was able to fully participate in deliberations. (Id.) Nothing that she discussed with Juror #4 affected her vote or her position on the case. (Id.) Juror #2 testified that Rodney McClish did not approach her in the hallway after his testimony and make any comments, nor did she overhear Mr. McClish make such a comment to any other juror. (Id. at 2750.) Juror #6 testified that neither he nor any other juror discussed the case outside of the deliberation process. (Id. at 2756.) He testified that Juror #4 expressed her views during deliberations. (Id.) He further testified that Juror #4 did not tell him she knew a relative of one of the victims in the case. (Id. at 2757.) He was not aware that one of the witnesses in the case had told Juror #4 that his testimony was truthful. (Id.) 20

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Juror #9 testified that neither he nor any other juror discussed the case outside of the deliberation process. (Id. at 2759-60.) He stated that Juror #4 was able to fully participate in the deliberation process. (Id. at 2760.) Juror #4 did not tell him that she recognized anyone in the audience. (Id.) Juror #11 testified that he discussed "the rounds of the bullet" with other jurors in the hallway. (Id. at 2763.) This did not affect him in any way in terms of the fairness of the deliberation process. (Id. at 2765.) Other than that conversation, neither he nor any other juror discussed the facts of the case. (Id. at 2768.) He testified that Juror #4 was able to participate in the deliberation process. (Id.) Juror #4 did not indicate to him that she was acquainted with someone in the audience who was related to one of the victims, or that one of the witnesses told Juror #4 that his testimony was truthful. (Id. at 2766.) Juror #1 testified that she followed the trial court's admonition not to discuss the case outside of the deliberation process and that, as far as she knew, the other jurors did the same. (Id. at 2771-72.) She testified that Juror #4 was able to fully participate in the deliberation process and was not threatened to change her opinions. (Id. at 2772.) Juror #4 did not tell her that she recognized any person in the audience or that one of the witnesses told Juror #4 that his trial testimony had been truthful. (Id. at 2773.) Juror #1 testified that Juror #4 attempted to bring up the subject of sentencing during deliberations, but she was reminded by the other jurors that this was not a proper subject to consider. (Id. at 2774, 2776.) The trial court also heard the testimony of Sheila Qualls, the sister of victim Allen Qualls. (Id. at 2791.) Ms. Qualls testified that she recognized Juror #4 when she saw her in court. (Id.) Both she and Juror #4 had worked at the Sacramento Bee, but she did not "personally know" Juror #4. (Id. at 2792.) She stated that Juror #4 was not a union representative at the Bee, as she had told the court, and that Juror #4 did not help her with a salary issue. (Id. at 2792.) Ms. Qualls also testified that she did not make eye contact with anyone in the elevator and that she did not look around at anyone in the elevator. (Id. at 2793.) 21

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Ms. Qualls testified that she had "no relationship at all" with Juror #4. (Id. at 2794.) The trial judge denied the motion for new trial with respect to all of the arguments made by petitioner that the court had not previously ruled on. The trial judge explained his ruling as follows: The Court has considered the pleadings of the parties, the testimony of the witnesses and the arguments of the parties. This matter comes down to a credibility question of whether the Court believes the testimony given by Juror Number Four and the alternate juror or whether the Court believes the testimony of the remaining jurors. The Court specifically finds that the testimony of Juror Number Four was not credible nor was the testimony of the alternate juror. Their testimony was not corroborated except in part by each other. The two did admit to conversing with each other on these matters before giving their testimony at the New Trial Motion hearing which allowed them the opportunity to fabricate their stories. No other juror testified in conformity with Juror Number Four or the alternate juror. There is no reason for the Court to find that all the other jurors have fabricated any matter. On the other hand, it appears to the Court that Juror Number Four has had buyer's remorse over her verdict and has been attempting to withdraw her votes on the verdicts in any way that she can think of. The Court therefore disbelieves the testimony of Juror Number Four and the alternate juror. Nor does the Court believe any further allegations made by Juror Four and the alternate juror in their subsequent affidavits from them recently filed with the Court. The Court specifically finds as a fact that no misconduct had occurred as alleged by Juror Four and the alternate juror nor will the verdict be overturned for any alleged pain felt by Juror Four during deliberations which the Court does not believe occurred. Therefore, the Motion For a New Trial is denied. (Id. at 2806-07.) 2. Applicable Law Under the Sixth Amendment, a criminal defendant has the right to be tried by an impartial jury and to confront and cross-examine the witnesses who testify against him. See Irvin v. Dowd, 366 U.S. 717, 722 (1961); Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). Jurors are objectionable if they have formed such deep and strong impressions that they will not 22

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listen to testimony with an open mind. Irvin, 816 U.S. at 722 n.3. A defendant is denied the right to an impartial jury if even one juror is biased or prejudiced. Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc); United States v. Eubanks, 591 F.2d 513, 517 (9th Cir. 1979). Thus, "[t]he presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice." United States v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000) (quoting Dyer, 151 F.3d at 973 n.2). A defendant in a criminal case is also entitled to a jury that reaches a verdict on the basis of evidence produced at trial. Turner v. Louisiana, 379 U.S. 466 (1965); Estrada v. Scribner, 512 F.3d 1227, 1238 (9th Cir. 2008); Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986) ("Jurors have a duty to consider only the evidence which is presented to them in open court."). The introduction of prejudicial extraneous influences into the jury room constitutes misconduct which may result in the reversal of a conviction. Parker v. Gladden, 385 U.S. 363, 364-65 (1966). However, it is not improper for a juror to bring his or her outside experiences to bear during deliberations. See Grotemeyer v. Hickman, 393 F.3d 871, 878 (9th Cir. 2004) (not improper for jury foreperson, a physician, to express her opinion that the defendant's mental illness caused him to commit the crime and that he would receive adequate mental health care in prison); United States v. Navarro-Garcia, 926 F.2d 818, 821-822 (9th Cir. 1991) (not improper for a juror to rely on his/her past personal experiences when hearing a trial and deliberating on a verdict as long as personal experiences are relevant only for purposes of interpreting the record evidence). On collateral review, trial errors, such as extraneous information that was considered by the jury, "are generally subject to a `harmless error' analysis, namely, whether the error had `substantial and injurious' effect or influence in determining the jury's verdict." Jeffries v. Wood, 114 F.3d 1484, 1491 (9th Cir. 1997)), overruled on other grounds by Lindh v. Murphy, 521 U.S. 320 (1997) (citing Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)). See also Estrada, 512 F.3d at 1235; Brown v. Ornoski, 503 F.3d 1006, 1018 (9th Cir. 2007) (finding not to be objectively unreasonable the state court's rejection of a claim based upon the allegation that four 23

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jurors had overheard petitioner's family and friends conversing about the case); Fields v. Brown, 431 F.3d 1186, 1209 n.16 (9th Cir. 2005) (noting that Brecht provides the standard of review for harmless error in cases involving unconstitutional juror misconduct). "Any unauthorized communication between a juror and a witness or interested party is presumptively prejudicial, but the government may overcome the presumption by making a strong contrary showing." Caliendo v. Warden of California men's Colony, 365 F.3d 691, 694 (9th Cir.), cert. denied 543 U.S. 927 (2004). See also Remmer v. United States, 347 U.S. 227, 228 (1954). "[I]f an unauthorized communication with a juror is de minimus, the defendant must show that the communication could have influenced the verdict before the burden of proof shifts to the prosecution . . . [and] must offer sufficient evidence to trigger the presumption of prejudice." Caliendo, 365 F.3d at 696 (internal quotations omitted). Factors relevant to this inquiry include "the length and nature of the contact, the identity and role at trial of the parties involved, evidence of actual impact on the juror, and the possibility of eliminating prejudice through a limiting instruction." Id. at 365 F.3d at 697-98. Cases providing examples of contact found to be de minimus include: Lee v. Marshall, 42 F.3d 1296 (9th Cir. 1994) (two police officers, one of them the investigating officer in the case, entered the jury room during deliberations without the court's permission to set up a VCR to replay a witness's testimony); Helmick v. Cupp, 437 F.2d 321 (9th Cir. 1971) (three arresting sheriff's deputies, one of them a prosecution witness, drove the jurors to the scene of the crime after being designated by the trial court as bailiffs for that purpose); and United States v. Day, 830 F.2d 1099, 1103-04 (10th Cir. 1987) (a juror and a federal agent who sat at the prosecutor's table exchanged a "casual, time-of-the-day greeting" in the men's room). If such a juror communication is not de minimus, prejudice is presumed and the defendant is entitled to a new trial "unless the prosecution shows that there is no reasonable possibility that the communication will influence the verdict." Caliendo, 365 F.3d at 696. ///// 24

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3. Analysis a. Juror No. 7 i. Concealing Information on Voir Dire Petitioner claims that Juror #7 deliberately concealed during voir dire that he had been the victim of child molestation. Petitioner argues that the trial court's ruling that Juror #7's concealment was unintentional and non-prejudicial is erroneous and not supported by the record. He contends that the ruling cannot be based on the affidavit of Juror #7, or on his testimony at the hearing on the motion for new trial, because the subject was not discussed in the affidavit and did not come up during the hearing. (Am. Pet. at 6(g); Traverse at 10-12.) Petitioner contends that Juror #7 "lied." (Traverse at 11-12.) This court construes petitioner's arguments as a claim that Juror #7 harbored implied bias, as reflected in his failure to disclose the molestation during voir dire. Courts have analyzed juror bias under two theories, actual bias and implied (or presumed) bias. Fields, 503 F.3d at 767-68. Actual bias is "`bias in fact' ­ the existence of a state of mind that leads to an inference that the person will not act with entire impartiality." Gonzalez, 214 F.3d at 1112 (quoting United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997)). Although actual bias is the more common grounds for excusing jurors for cause, "[i]n extraordinary cases, courts may presume bias based upon the circumstances." Gonzalez, 214 F.3d at 1112 (quoting Dyer, 151 F.3d at 981). See also McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556-57, 558 (1984); Smith v. Phillips, 455 U.S. 209, 221-24 (1982) (O'Connor, J, concurring) ("there are some extreme circumstances that would justify a finding of implied bias"); Clark v. United States, 289 U.S. 1, 11 (1933). Implied bias is bias conclusively presumed as a matter of law. United States v. Wood, 299 U.S. 123, 133 (1936); United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2000) (citing Torres, 128 F.3d at 45). On collateral review, a petitioner must show that the alleged error " 'had substantial and injurious effect or influence in determining the jury's verdict.'" Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir. 1993) (quoting 25

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Brecht, 507 U.S. at 637). In McDonough a juror failed to inform the trial court, in response to a voir dire question seeking to elicit information about previous injuries to members of the juror's immediate family that resulted in disability or prolonged pain, that his son had sustained such an injury. 464 U.S. at 550. The juror explained that he did not believe his son's injury (a broken leg) was relevant to the trial court's inquiry because it did not result in disability or prolonged pain. Id. at 552 n.3. In declining to order a new trial on the basis of juror bias under these circumstances, the United States Supreme Court explained: To invalidate the result of a three-week trial because of a juror's mistaken, though honest response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination. Id. at 555. The Supreme Court held in that case that "to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Id. at 556. In Fields, a juror in a rape trial disclosed on voir dire that his wife had been assaulted and beaten, but failed to specify that she had also been raped. When questioned after the verdict at an evidentiary hearing before the federal district court about this voir dire answer, the juror explained that when he volunteered that his wife had been assaulted and beaten, he expected for people in the courtroom to understand that she had been sexually abused. 503 F.3d at 765. The juror testified that, if asked, he would have said that he could be fair and impartial. Id. He explained that he told the truth when he stated he would base his decision strictly on the evidence presented, and stated that he did his best to be a fair juror. Id. The district court found that the juror was not dishonest during voir dire, that he was not actually biased, and that 26

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application of the implied bias doctrine in the absence of juror dishonesty would be a new rule barred by Teague v. Lane, 489 U.S. 288 (1989). Fields, 503 F.3d at 763. The Ninth Circuit agreed, concluding, first, that the juror did not respond dishonestly on voir dire and did not intend to mislead the trial court when he used the word "assault" instead of "rape" and "kidnap" to describe what had happened to his wife. Id. at 767. To the extent the juror may have been mistaken in assuming that the words he used would make it apparent that his wife had also been raped, the Ninth Circuit concluded that this was "an honest mistake for a layperson to make." Id. The court also concluded that there was no evidence the juror harbored "actual bias" and that the facts indicated the juror had remained impartial, notwithstanding what had happened to his wife. Id. at 767-68. Finally, the Ninth Circuit found that the juror in question did not harbor implied bias. The court noted that the Supreme Court has never held that a juror was impliedly biased in the absence of juror dishonesty, while the Ninth Circuit has recognized that "it is an unresolved question whether dishonesty is a necessary predicate to a finding of juror bias." Id. at 771. On the other end of the spectrum, bias was presumed in Dyer where a juror answered "no" when asked during voir dire whether she or any of her relatives or close friends had ever been the victim of any type of crime when, in fact, her seventeen year old brother had been murdered execution-style; and then told the judge she had answered "no" because she thought the shooting was an accident. 151 F.3d at 983. Similarly, the Ninth Circuit presumed bias in a case where the jury foreperson in a murder trial lied about his own prior felony conviction on a written jury questionnaire and in voir dire, and where his "pattern of lies, inappropriate behavior, and attempts to cover up his behavior introduced `destructive uncertainties' into the fact-finding process." Green v. White, 232 F.3d 671, 676 (9th Cir. 2000) (quoting Dyer, 151 F.3d at 983). This present case is clearly more akin to McDonough and Fields than to Dyer and Green. Juror #7 explained to the prosecutor that, because of the unexpected presence of the defendants and defense counsel in the room, he became flustered when questioned by the trial 27

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judge about his voir dire answer and forgot what he wanted to discuss in private. Although he later remembered, he decided not to mention it because he thought it was not material to the issues posed in the case. There is no evidence before this court that Juror #7 was partial or biased, or that he intended to mislead the trial court by his voir dire responses. Further, Juror #7 assured the trial judge that the molestation incident did not affect his judgment in this case. The Ninth Circuit has stated that a reviewing court must "be tolerant, as jurors may forget incidents long buried in their minds . . . or bend the truth a bit to avoid embarrassment." Dyer, 151 F.3d at 973. The Supreme Court has held that an honest yet mistaken answer to a voir dire question rarely amounts to a constitutional violation and that even an intentionally dishonest answer is not fatal, so long as the falsehood does not bespeak a lack of impartiality. McDonough, 464 U.S. at 555-56. See also id. at 554 ("the motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of the trial"). Here, as noted by the trial judge, Juror #7 was only thirteen when the molestation occurred, and the sexual abuse was completely dissimilar to the crimes with which petitioner and his co-defendants were charged. The conclusion of the trial judge that these circumstances reflected only an unintent