Dixon v. McDonald

Filing 22

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 09/20/11 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)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTHONY DEAN DIXON, III,

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Petitioner,
vs.
MIKE McDONALD, Warden,

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Respondent.

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No. 2:10-cv-3030 GEB KJN P

FINDINGS AND RECOMMENDATIONS
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I. Introduction

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Petitioner is a state prisoner, proceeding without counsel, with an application for a

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writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2008 conviction on

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charges of first degree murder with true findings that petitioner personally used a firearm causing

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great bodily injury. Petitioner was sentenced to 50 years to life in prison. Petitioner raises three

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claims related to alleged juror misconduct, and one claim of ineffective assistance of trial counsel

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based on counsel’s failure to move for disclosure of juror identifying information. After careful

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review of the record, this court recommends that the petition be denied.

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II. Procedural History

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Petitioner filed a timely appeal to the California Court of Appeal, Third Appellate
District. The judgment was affirmed by the Court of Appeal on May 14, 2010. (Lodged
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Document (“LD”) C.) Petitioner filed a petition for review in the California Supreme Court.

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(LD D.) The California Supreme Court denied review on September 1, 2010. (LD E.)

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Petitioner filed the instant petition on November 10, 2010. (Dkt. No. 1.)
III. Facts1

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The opinion of the California Court of Appeal contains a factual summary of
petitioner’s offenses.

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On September 6, 2006, at around 7:13 a.m., two school-aged
children discovered the body of John Dills. Dills was dead, having
sustained three gunshot wounds to the upper torso and chest, two
wounds to the left ear area, a wound on the left temple, and a
wound on the outer part of the left hand.

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Freeman Kellison knew [petitioner] since they were children. In
September 2006, [petitioner], Kellison, and Dills worked on
three-wheelers and took drugs together. [Petitioner] often stayed at
Kellison's home during this time.

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[Petitioner] and Dills stayed with Kellison at his grandmother's
house on the evening of September 4, 2006. Kellison was afraid
that night and borrowed a .22-caliber handgun from his
grandmother. Kellison was uncomfortable with handguns, so he
gave the weapon to [petitioner], a hunter familiar with guns. Dills
was afraid for his safety, constantly expressing his desire to get out
of California. Kellison offered to help by buying him a bus ticket.

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The following day, the trio picked up some of Dills's clothing
from the home where his father was staying. They eventually
returned to Kellison's grandmother's house, where Kellison and
[petitioner] obtained her permission to let Dills sleep there that
night. However, Dills had fallen asleep in the car, where he was
left for the night.

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Kellison got his grandmother's handgun again and gave it to
[petitioner]. [Petitioner] told Kellison he suspected Dills of being
a child molester, and the two discussed whether this was why Dills
wanted to leave California. [Petitioner] suggested killing Dills as a
way to take care of this situation. Kellison said this was none of
their business, but [petitioner] retorted, “what if [Dills] raped your
grandmother?”

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////

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The facts are taken from the opinion of the California Court of Appeal for the Third
Appellate District in People v. Dixon, No. C060356 (May 14, 2010). (LD C.)
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Kellison decided to go to the hospital to treat a spider bite on his
knee. He and [petitioner] got into the car, which still contained the
sleeping Dills. However, Kellison drove in the opposite direction
as [petitioner] directed him to a place where they could buy
marijuana. The person with the marijuana was not home, so
Kellison drove back towards the hospital.

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After Dills woke up in the backseat, [petitioner] asked him to
reach down and pick up a bag of [petitioner’s] belongings off the
floor. [Petitioner] then turned around and shot Dills twice, causing
him to slump down. Kellison slowed the car down, but [petitioner]
shot Dills again before the car stopped.

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Once the car stopped, [petitioner] and Kellison got out. Kellison
pulled Dills's body out of the car, laid his own shirt over the torso,
and dumped Dills on the side of the road before driving back to his
grandmother's house with [petitioner]. He also took the gun from
[petitioner] and put it away.

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Kellison was serving a prison term after pleading guilty to a
manslaughter charge, and was scheduled to be released about a
year after the date of his testimony. He had previously been
arrested for stealing the ingredients for methamphetamine from a
K-Mart; he also had a recipe for methamphetamine in his
possession when he was arrested.
Kellison's grandmother testified she owned the .22-caliber Ruger
semiautomatic pistol used to kill Dills. The pistol was found in a
search of her house, which also discovered a bloody wig folded
over a citation issued to Dills and an empty box for .22-caliber
rounds.
[Petitioner] was interviewed by a Butte County Sheriff's deputy.
He admitted shooting Dills, but claimed it was an accident.
[Petitioner] said the first shot went off accidentally while he was
playing with the gun and the car hit a bump. Dills was shot in the
neck and was suffering, so [petitioner] shot Dills many times, like
a hunter putting a wounded animal out of its misery. He admitted
shooting Dills four or five times, including once in the head.
[Petitioner] did not like Dills; he thought Dills was a thief and a
child molester. When [petitioner] got into the car, he thought Dills
might die. [Petitioner] admitted using methamphetamine at the
time of the shooting.

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Peter Barnett testified as an expert criminalist for the defense.
He thought that the position of the bloodstain in Kellison's car and
the direction of the gunshots on the body indicated that Dills was
shot from the driver's side rather than from the passenger side of
the front seat. However, he admitted it was possible that Dills was
shot from the passenger side and slumped over before being shot again.
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(People v. Dixon, LD C at 1-4.)

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IV. Standards for a Writ of Habeas Corpus

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An application for a writ of habeas corpus by a person in custody under a

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judgment of a state court can be granted only for violations of the Constitution or laws of the

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United States. 28 U.S.C. § 2254(a). A federal writ is not available for alleged error in the

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interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991);

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Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000).

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Federal habeas corpus relief is not available for any claim decided on the merits in
state court proceedings unless the state court’s adjudication of the claim:

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(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

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(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.

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28 U.S.C. § 2254(d).

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Under section 2254(d)(1), a state court decision is “contrary to” clearly

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established United States Supreme Court precedents if it applies a rule that contradicts the

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governing law set forth in Supreme Court cases, or if it confronts a set of facts that are materially

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indistinguishable from a decision of the Supreme Court and nevertheless arrives at a different

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result. Early v. Packer, 537 U.S. 3, 7 (2002) (citing Williams v. Taylor, 529 U.S. 362, 405-06

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(2000)).

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Under the “unreasonable application” clause of section 2254(d)(1), a federal

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habeas court may grant the writ if the state court identifies the correct governing legal principle

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from the Supreme Court’s decisions, but unreasonably applies that principle to the facts of the

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prisoner’s case. Williams, 529 U.S. at 413. A federal habeas court “may not issue the writ

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simply because that court concludes in its independent judgment that the relevant state-court

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decision applied clearly established federal law erroneously or incorrectly. Rather, that
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application must also be unreasonable.” Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75

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(2003) (it is “not enough that a federal habeas court, in its independent review of the legal

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question, is left with a ‘firm conviction’ that the state court was ‘erroneous.’”) (internal citations

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omitted). “A state court’s determination that a claim lacks merit precludes federal habeas relief

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so long as ‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”

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Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

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The court looks to the last reasoned state court decision as the basis for the state

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court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). If there is no reasoned

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decision, “and the state court has denied relief, it may be presumed that the state court

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adjudicated the claim on the merits in the absence of any indication or state-law procedural

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principles to the contrary.” Harrington, 131 S. Ct. at 784-85. That presumption may be

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overcome by a showing that “there is reason to think some other explanation for the state court’s

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decision is more likely.” Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991)).

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V. Petitioner’s Claims

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A. Alleged Juror Misconduct

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Petitioner contends the trial court abused its discretion when it rejected

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petitioner’s request for an evidentiary hearing into juror misconduct, because “a Griffin error is

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reversible error if proven.” (Dkt. No. 1 at 19, citing Griffin v. California, 380 U.S. 609, 611-12

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(1965), and Killian v. Poole, 282 F.3d 1204 (9th Cir. 2002).) Petitioner also argues that the trial

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court abused its discretion when it discounted the allegations of misconduct by Juror C.S. based

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on inferences not supported by the evidence. Petitioner claims that the jury committed

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misconduct when they considered, during jury deliberations, petitioner’s Fifth Amendment right

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to remain silent.

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Respondent counters that the state court properly found that there was no evidence

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that petitioner’s failure to testify influenced the jury’s verdict, and therefore the denial of the

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motion for evidentiary hearing was proper, and the rejection of petitioner’s claims was not
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contrary to any United States Supreme Court authority.

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i. Background

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On October 6, 2008, petitioner filed a motion for new trial. (Clerk’s Transcript

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(“CT”) 354.) Petitioner appended a declaration from Juror C.S., a photocopy of a news article

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about petitioner’s case, and an “interoffice memorandum” from defense attorney Jason Reisinger

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to petitioner’s trial counsel Jesus Rodriguez. (CT 356, 365, 362.) Juror C.S. declared:

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I was a member of the jury that deliberated on the case of People
v. Anthony Dixon in the Superior Court of California, County of
Butte, from August 11 through August 13 of 2008. We reached a
verdict on Wednesday, August 13, 2008.

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During the course of our deliberations, it became an issue that the
[petitioner], Mr. Dixon, had not testified on his own behalf.
Several jurors discussed Mr. Dixon’s failure to testify and took it
into consideration during our deliberations.
Additionally, we had a difficult time putting the facts of the case
together. It was unclear to us what had really happened. We
thought there may have been a second gun and, perhaps, another
shooter.

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(CT 356.) The news article was titled “Gunman Convicted in Palermo Killing,” written by Terry

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Vau Dell, staff writer, and “launched” on August 14, 2008, at 12:00 a.m. (CT 362.) The relevant

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portion of the article states:

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Following the verdict, the jury foreman told a reporter outside of
court the [petitioner’s] videotaped confession to sheriff’s detectives
the day after the murder was pivotal.
“The fact also that he did not take the stand and say anything
differently from his confession was also very important,” the jury
foreman added
The jury foreman said his fellow jurors believed that although
Dixon alone shot the victim, both he and Kellison were equally
involved in planning and carrying out the teen’s murder.
“It was a mutual thing; personally I believe he (Kellison) was as
guilty of pulling the trigger as Mr. Dixon,” the Paradise juror said.

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(CT 362.) Jason Reisinger, defense attorney and associate of petitioner’s defense counsel, stated
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in his September 18, 2008 interoffice memorandum, that:

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Today, I spoke with Chris Hatch, juror in the People v. Anthony
Dixon, Butte County case no. CM025560. We met at his office at
9:00 a.m. and spoke for about 30 minutes about the case.

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Mr. Hatch described the process the jury went through during their
deliberations. He stated that some alternative theories of the crime
were discussed that had no basis in the evidence introduced at trial.
He also stated that jurors discussed the fact that Mr. Dixon did not
testify on his own behalf at trial during their deliberations.

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I asked Mr. Hatch if he would sign a declaration about the
information he had shared with me, but he declined to do so.

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(CT 365.)

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The trial court heard petitioner’s motion for new trial on October 7, 2008. (RT

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504.) The prosecution objected to the timeliness of petitioner’s motion, and argued that the

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documents provided by petitioner failed to meet the requirements of California Evidence Code

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§ 1150.2 (RT 504-05.) In response, defense counsel apologized for the late filing, noting he

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shared an investigator involved in a different murder trial, which made it difficult to “gather all

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the juror interviews that [he] wanted to gather prior to filing [the] motion.” (RT 505.) Defense

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counsel noted that he had not had an opportunity to address each juror, and that there were jurors

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who were approached but who did not return telephone calls, which defense counsel took “as

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Section 1150 states:
(a) Upon an inquiry as to the validity of a verdict, any otherwise
admissible evidence may be received as to statements made, or
conduct, conditions, or events occurring, either within or without
the jury room, of such a character as is likely to have influenced the
verdict improperly. No evidence is admissible to show the effect of
such statement, conduct, condition, or event upon a juror either in
influencing him to assent to or dissent from the verdict or
concerning the mental processes by which it was determined.

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(b) Nothing in this code affects the law relating to the competence
of a juror to give evidence to impeach or support a verdict.

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Id.
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meaning that they do not wish to talk to us.” (RT 505.) Defense counsel asked the court to grant

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the motion, but asked that in the alternative, the court grant an extension of time to allow both

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the prosecution and the defense to examine the remainder of the jurors. (RT 509.) The

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prosecution responded that her investigator spoke to the juror (name redacted) who denied “that

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he made these statements and denies the fact that the [petitioner] did not testify was ever

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discussed or was ever an issue.” (RT 509.)

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The trial court struck the interoffice memorandum and the newspaper article as

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hearsay. (RT 511.) As to Juror C.S.’s declaration, dated September 18, 2008, the trial court

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stated:

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[S]everal of the jurors[’] statements are conclusionary and do not
pass the requirements needed in Evidence Code Section 1150.

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The only objective testimony given the Court in this affidavit is
the fact that the juror heard mention during the course of
deliberations Mr. Dixon’s failure to testify. The effect of that
conversation would not be admissible. There appears to the Court
to have been some discussion made by some unknown jurors
during the course of the deliberations. There is no evidence to
show that those discussions were in any way extensive, that they in
any way were prejudicial to the [petitioner], and for that reason the
motion is denied.

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(RT 511-12.)

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ii. State Court Opinion

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The last reasoned rejection of this claim is the decision of the California Court of

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Appeal for the Third Appellate District on petitioner’s direct appeal. The state court addressed

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this claim as follows:

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On October 6, 2008, almost two months after the verdict and the
day before sentencing, [petitioner] filed a motion for new trial
based on juror misconduct. Attached to the motion was the
declaration of Juror C.S., which stated: “During the course of our
deliberations, it became an issue that the [petitioner], Mr. Dixon,
had not testified on his own behalf. Several jurors discussed Mr.
Dixon's failure to testify and took it into consideration during our
deliberations. [¶] Additionally, we had a difficult time putting the
facts of the case together. It was unclear to us what had really
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happened. We thought there may have been a second gun and,
perhaps, another shooter.”

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The motion contained two exhibits. The first was a newspaper
article relating that the jury foreman thought [petitioner’s]
videotaped confession was pivotal, and quoted the foreman as
saying, “The fact . . . that he did not take the stand and say anything
differently from his confession was also very important.” The
other exhibit was a statement from a defense investigator, Jason
Reisinger, relating his conversation with Juror C.H., who told him
“that some alternative theories of the crime were discussed that had
no basis in the evidence” and “that jurors discussed the fact that
Mr. Dixon did not testify on his own behalf at trial during their
deliberations.” Reisinger asked Juror C.H. to sign a declaration
regarding the conversation, but the juror declined.
[Petitioner’s] motion argued that the jurors violated his Fifth
Amendment right not to testify by considering his failure to take
the stand, and this misconduct was prejudicial, mandating a new
trial. During argument on the motion, defense counsel also argued
that if the court was not ready to grant the motion, it could grant an
extension so the prosecution and the defense could examine the
remaining jurors.
The court struck the defense investigator's statements and the
newspaper article as hearsay. It found the declaration of Juror C.S.
did not satisfy Evidence Code section 1150 except for the
statement that some jurors discussed [petitioner’s] failure to testify.
Regarding the jury's alleged discussion of [petitioner’s] failure to
testify, the court stated, “There is no evidence to show that those
discussions were in any way extensive, that they in any way were
prejudicial to the [petitioner], and for that reason the motion is
denied.”
On appeal, [petitioner] contends that the trial court abused its
discretion because the misconduct related in Juror C.S.'s
declaration was prejudicial and the allegations in the newspaper
article and by the defense investigator raised an inference of
misconduct which warranted an evidentiary hearing. He is
mistaken.

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“When a party seeks a new trial based upon jury misconduct, a
court must undertake a three-step inquiry. The court must first
determine whether the affidavits supporting the motion are
admissible under Evidence Code section 1150, subdivision (a).”
(People v. Von Villas (1992) 11 Cal.App.4th 175, 255.) “If the
evidence is admissible, the court must then consider whether the
facts establish misconduct. [Citation.] Finally, assuming
misconduct, the court must determine whether the misconduct was
prejudicial.” (Ibid.) We will not disturb a trial court's denial of a
motion for new trial unless the trial court unmistakably abused its
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discretion. (People v. Cox (1991) 53 Cal.3d 618, 694, disapproved
on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421,
fn. 22.)
“‘[W]hen a criminal defendant moves for a new trial based on
allegations of jury misconduct, the trial court has discretion to
conduct an evidentiary hearing to determine the truth of the
allegations. We stress, however, that the defendant is not entitled
to such a hearing as a matter of right. Rather, such a hearing
should be held only when the trial court, in its discretion,
concludes that an evidentiary hearing is necessary to resolve
material, disputed issues of fact.’ [Citation.] Also, a hearing
‘should be only held 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.’” (People v. Hardy (1992) 2 Cal.4th 86, 174, fn.
omitted.)
The trial court correctly dismissed without further hearing the
newspaper article and the defense investigator's statement.
“Normally, hearsay is not sufficient to trigger the court's duty to
make further inquiries into a claim of juror misconduct.” (People
v. Hayes (1999) 21 Cal.4th 1211, 1256.) In Hayes, a defense
investigator and defense counsel submitted unsworn statements
that a juror told them some of the jurors had read newspaper
accounts of the trial proceedings. (Id. at p. 1253.) Hayes presented
no statement by the juror herself. (Id. at p. 1256.) The trial court
denied the motion for a new trial without further inquiry into the
claim of misconduct. (Id. at p. 1255.) The Supreme Court found
no abuse of discretion in failing to conduct an evidentiary hearing.
(Id. at p. 1256.)
In People v. Carter (2003) 30 Cal.4th 1166, the Supreme Court
repeated that hearsay is not sufficient to trigger the court's duty to
conduct an evidentiary hearing and, revisiting its prior holding in
Hayes, reminded us: “We found no abuse of discretion in the trial
court's denial of the new trial motion without a hearing, noting that
the court was justified in according little, if any, credence to the
hearsay assertions the juror would not verify.” (Id. at p. 1217.)
The Supreme Court also found no abuse of discretion in the denial
of the new trial motion without an evidentiary hearing. (Ibid.)
Since the allegations in both the newspaper article and the defense
investigator's statement were hearsay, the trial court was under no
obligation to investigate them further before denying the new trial
motion.
The trial court's analysis of Juror C.S.'s declaration was also
correct. Evidence Code section 1150 bars consideration of
evidence of a juror's thought process in a motion for new trial.
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(People v. Steele (2002) 27 Cal.4th 1230, 1263-1264.) The trial
court properly applied this provision and dismissed the juror's
allegations that the jury considered theories not supported by the
evidence and had difficulty putting together the facts of the case.

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Juror C.S.'s allegation that several jurors discussed [petitioner’s]
failure to testify is another matter. “[E]vidence of a jury discussion
on an improper topic [is] admissible as an ‘overt act’ provided the
evidence is not directed at the subjective reasoning processes of the
individual juror.” (People v. Perez (1992) 4 Cal.App.4th 893, 907
(Perez).) A juror's declaration that the jury discussed defendant's
failure to testify supports a finding of misconduct. (People v.
Leonard (2007) 40 Cal.4th 1370, 1424-1425 (Leonard); People v.
Hord (1993) 15 Cal.App.4th 711, 721, 725 (Hord).)

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The trial court did not dismiss this allegation out of hand, instead
finding that the alleged misconduct was not prejudicial. Whether
juror misconduct is prejudicial is a mixed question of fact and law
subject to the independent determination of the appellate court.
(Leonard, supra, 40 Cal.4th at p. 1425.) “Although misconduct
raises the presumption of prejudice ‘[t]he presumption of prejudice
may be rebutted, inter alia, by a reviewing court's determination,
upon examining the entire record, that there is no substantial
likelihood that the complaining party suffered actual harm.’”
(Hord, supra, 15 Cal.App.4th at p. 725.)
Our Supreme Court has recognized the difficulty of controlling
the minds and voices of 12 jurors who are humans rather than
automatons: “Not all comments by all jurors at all times will be
logical, or even rational, or, strictly speaking, correct. But such
comments cannot impeach a unanimous verdict; a jury verdict is
not so fragile. ‘. . . The jury system is an institution that is legally
fundamental but also fundamentally human. Jurors bring to their
deliberations knowledge and beliefs about general matters of law
and fact that find their source in everyday life and experience.
That they do so is one of the strengths of the jury system. It is also
one of its weaknesses: it has the potential to undermine
determinations that should be made exclusively on the evidence
introduced by the parties and the instructions given by the court.
Such a weakness, however, must be tolerated. “[I]t is an
impossible standard to require . . . [the jury] to be a laboratory,
completely sterilized and freed from any external factors.”
[Citation.] Moreover, under that “standard” few verdicts would be
proof against challenge.’” (People v. Riel (2000) 22 Cal.4th 1153,
1219.)
The allegation in Juror C.S.'s declaration does not state that the
jurors considered [petitioner’s] failure to testify as evidence of
guilt, only that some jurors discussed the matter and took it into
consideration. “Transitory comments of wonderment and
curiosity, although misconduct, are normally innocuous,
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particularly when a comment stands alone without any further
discussion.” (Hord, supra, 15 Cal.App.4th at pp. 727-728.)

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The instant case is distinguished from Perez, supra, 4
Cal.App.4th 893, where defense counsel unsuccessfully moved for
funding to investigate possible juror misconduct based on a juror's
statement that the jury based its decision of guilt on the fact that
the defendant did not testify and that jurors mentioned this fact
during deliberations. (Id. at p. 905.) The trial court “‘assume[d]
for the sake of argument that all 12 jurors would say that that
discussion . . . took place,’” but the court believed such statements
would be inadmissible. (Id. at p. 906.) The trial court denied a
motion for new trial. (Ibid.) The appellate court vacated the
judgment and remanded for further proceedings, stating the trial
court envisioned the jury had explicitly or implicitly agreed to
disregard the court's express instruction, and evidence of such an
agreement would be admissible to impeach the verdict under
Evidence Code section 1150 and would constitute jury misconduct.
(Id. at p. 908.) The appellate court noted, however, the trial court
should not assume what occurred but should put defendant to his
proof. (Id. at p. 909.)

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While the jurors discussed [petitioner’s] failure to take the stand,
there was no evidence of an explicit or implicit agreement to
consider it as evidence of his guilt, which distinguishes Perez.
(Hord, supra, 15 Cal.App.4th at p. 726.) “Where the misconduct is
not ‘inherently likely’ to have affected the vote of any of the jurors,
prejudice is not shown.” (Id. at p. 727.) Lacking any evidence that
[petitioner’s] failure to testify influenced the jury's verdict, the trial
court correctly concluded that [petitioner] was not prejudiced by
the misconduct.

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(People v. Dixon, LD C at 5-12.)

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iii. Legal Standards

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State criminal defendants have a federal constitutional right to a fair and impartial

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jury. See Duncan v. Louisiana, 391 U.S. 145, 149 (1968) (Sixth Amendment right to jury trial);

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Estrada v. Scribner, 512 F.3d 1227, 1239 (9th Cir. 2008) (Sixth Amendment guarantees criminal

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defendants verdict by impartial, indifferent jurors) (citation omitted), cert. denied, 128 S. Ct.

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2971 (2008). Due process requires that a criminal defendant be tried by “a jury capable and

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willing to decide the case solely on the evidence before it.” Smith v. Phillips, 455 U.S. 209, 217

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(1982).

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In reviewing a claim of juror misconduct, “[t]he test is whether or not the
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misconduct has prejudiced the defendant to the extent that he has not received a fair trial.”

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United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974). Thus, allegations of juror misconduct

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are cognizable federal habeas claims to the extent a petitioner is arguing that he was denied a fair

4

trial. See Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th Cir. 1993) (finding that question on habeas

5

review is whether juror misconduct deprived defendant of his or her right to fair trial). “To

6

obtain relief, petitioners must now show that the alleged error” ‘had [a] substantial and injurious

7

effect or influence in determining the jury's verdict.’” Id. at 1190 (quoting Brecht v.

8

Abrahamson, 507 U.S. 619, 637-39 (1993) (quoting Kotteakos v. United States, 328 U.S. 750,

9

776 (1946)).

10

iv. Application

11

First, petitioner’s argument that the trial court should have held an evidentiary

12

hearing because a Griffin error is reversible is unavailing. Petitioner’s reliance on Griffin and

13

Killian is misplaced because these cases do not support the proposition that a criminal

14

defendant's right against self-incrimination is violated by alleged jury misconduct, or that an

15

evidentiary hearing is required under the instant circumstances. Rather, Griffin pertains to

16

prosecutorial misconduct in commenting on a defendant's failure to testify. Griffin, 380 U.S. at

17

612-14. Killian pertains to prosecutorial misconduct in commenting on a defendant becoming

18

silent upon arrest. Killian, 282 F.3d at 1211. Petitioner has failed to identify clearly established

19

Supreme Court authority supporting the proposition that due process or the right to a fair trial

20

requires a state trial court to provide criminal defendants with juror identifying information or to

21

hold a hearing on a motion for disclosure of such information. See, e.g., Tracey v. Palmateer,

22

341 F.3d 1037, 1045 (9th Cir. 2003), cert. denied, 543 U.S. 864 (2004) (“Clearly established

23

federal law, as determined by the Supreme Court, does not require state or federal courts to hold

24

a hearing every time a claim of juror bias [or misconduct] is raised.”).

25
26

“Under California law, a defendant is entitled to a hearing to obtain juror
identifying information only if he first presents a petition that establishes good cause for the
13

1

information.” Feiger v. Hickman, 2008 WL 1787416, at *7 (S.D. Cal. Apr. 16, 2008) (citing Cal.

2

Civ. Proc. Code § 237 and People v. Jefflo, 63 Cal. App. 4th 1314, 1318-23, n.8, 74 Cal. Rptr. 2d

3

622 (1998)). But the court does not need to set the matter for a hearing if the petition and

4

declaration fail to establish a prima facie showing of good cause for the release of juror

5

information or if there exists “a compelling interest against disclosure.” Cal. Civ. Proc. Code

6

§ 237(b).3 “To establish good cause a defendant must set forth a sufficient showing to support a

7

reasonable belief that jury misconduct occurred.” Feiger, 2008 WL 1787416, at *7 (citations

8

omitted).

9

However, federal habeas corpus relief “does not lie for errors of state law.” Lewis

10

v. Jeffers, 497 U.S. 764, 780 (1990); Estelle v. McGuire, 502 U.S. 62, 67 (1991). “A federal

11

court may not issue the writ [of habeas corpus] on the basis of a perceived error of state law.”

12

Pulley v. Harris, 465 U.S. 37, 41 (1984). Petitioner’s claim alleging the trial court failed to hold

13

an evidentiary hearing is an alleged claim of state law error, not cognizable on habeas review.

14

Petitioner’s claim that the trial court abused its discretion when it discounted the

15

allegations of misconduct by Juror C.S. based on inferences not supported by the evidence, is

16

similarly unavailing. A state court’s evidentiary ruling is not subject to federal habeas review

17
3

Section 237(b) provides:

18
Any person may petition the court for access to these records. The
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. A compelling interest includes, but is
not limited to, protecting jurors from threats or danger of physical
harm. If the court does not set the matter for hearing, the court
shall by minute order set forth the reasons and make express
findings either of a lack of a prima facie showing of good cause or
the presence of a compelling interest against disclosure.

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20
21
22
23
24
25
26

Id.
14

1

unless the ruling violates federal law, either by infringing upon a specific federal constitutional or

2

statutory provision, or by depriving the defendant of the fundamentally fair trial guaranteed by

3

due process. See Pulley, 465 U.S. at 41; Jammal v. Van De Kamp, 926 F.2d 918, 919-20 (9th

4

Cir. 1991).

5

But even if the state trial court erred in failing to hold an evidentiary hearing or in

6

denying petitioner’s motion for new trial, such error was harmless because pursuant to Federal

7

Rule of Evidence 606(b), evidence that one or more jurors considered petitioner’s failure to

8

testify at trial during their deliberations was inadmissible to impeach petitioner's verdict in his

9

motion for a new trial.4 Fed. R. Evid. 606(b); United States v. Rutherford, 371 F.3d 634, 639-40

10

(9th Cir. 2004).5 In other words, petitioner’s failure to testify in his own defense is not extrinsic

11

evidence. Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006) (internal citation omitted). In Raley,

12

the Ninth Circuit found that the jury's discussion of “constitutionally forbidden topics,” including

13

a defendant's failure to testify, did not amount to a due process violation as it was not extrinsic

14

evidence. Id. at 803. Thus, petitioner’s reliance on Remmer v. United States, 347 U.S. 227, 229

15

(1954), in connection with petitioner’s claim that the trial court abused its discretion is also

16

unavailing. In Remmer, an unnamed person communicated with a juror, which was extraneous

17

or outside influence on the jury. Id. Here, as noted above, petitioner’s failure to take the stand is

18
4

19

The Federal Rules of Evidence apply to habeas corpus proceedings to the extent that the
habeas statutes themselves provide no different rule of evidence. Fed. R. Evid. 1101(e). There is
no habeas evidentiary rule on the subject.

20
5

21
22
23
24
25
26

Rule 606(b) of the Federal Rules of Evidence bars a juror’s testimony “as to ‘any matter
or statement occurring during the course of the jury's deliberations or to the effect of anything
upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent
from the verdict or indictment or concerning the juror's mental processes in connection
therewith.’ There are two exceptions: a juror may testify as to whether (1) ‘extraneous
prejudicial information was improperly brought to the jury's attention’ or (2) whether ‘any
outside influence was improperly brought to bear upon any juror.’ . . . Here, . . . the jurors
learned of Mrs. Rutherford's failure to testify through their personal observations during trial, not
through a prohibited route or improper ex parte contact. Under these circumstances, the district
court did not err in concluding that testimony regarding Mrs. Rutherford's absence from the
witness stand is inadmissible under Rule 606(b) because . . . it does not concern facts bearing on
extraneous or outside influences on the deliberation.” Rutherford, 371 F.3d at 639-40.
15

1

not extrinsic evidence. Raley, 470 F.3d at 803.

2

Moreover, even assuming that the jury discussed petitioner’s failure to testify,

3

petitioner must show that the alleged error “‘had [a] substantial and injurious effect or influence

4

in determining the jury's verdict.’” Jeffries, 5 F.3d at 1190 (quoting Brecht, 507 U.S. at 637).

5

The testimony adduced at trial reasonably supports a conclusion that any jury misconduct

6

regarding the discussion of petitioner’s failure to testify did not affect the verdict. Freeman

7

Kellison testified that petitioner “suggested that a way to take care of the situation would be to

8

kill John [Dill].” (Reporter’s Transcript (“RT”) 192.) Kellison testified petitioner “said the guy

9

[Dill] needed to be shot.” (RT 193.) Kellison also testified petitioner unexpectedly shot Dill

10

while Kellison was driving the vehicle. (RT 201-02.) Moreover, petitioner admitted to Butte

11

County Sheriff’s Deputies that he shot the victim. (Clerk’s Supp. Transcript at 6.) Deputy

12

Sheriff Denny Lewis testified that he interviewed petitioner on September 6, 2006, during which

13

petitioner admitted shooting John Dill, and admitted talking to Kellison about shooting John Dill

14

earlier on the day of the shooting. (RT 318, 323-24.) Deputy Sheriff Lewis also testified that

15

petitioner told Lewis that after petitioner shot Dill, it looked like Dill was suffering--referring to

16

hunting animals and fishing--and that petitioner shot Dill in the head to “put him out of his

17

misery.” (RT 325-26.) Finally, Deputy Sheriff William Olive testified that Freeman Kellison

18

told him that petitioner shot John Dill, and admitted discussing shooting John Dill earlier on the

19

day of the actual shooting. Given this damaging testimony, petitioner is unable to show that the

20

alleged juror misconduct had an injurious effect or influence on the verdict.

21

For all of the above reasons, petitioner failed to show that the alleged juror

22

misconduct deprived petitioner of a fair trial. The state court’s rejection of petitioner’s claims

23

alleging juror misconduct was neither contrary to, nor an unreasonable application of, controlling

24

principles of United States Supreme Court precedent. Therefore, petitioner’s first claim for relief

25

should be denied.

26

////
16

1

B. Alleged Ineffective Assistance of Counsel

2

Petitioner claims that he suffered ineffective assistance of trial counsel based on

3

counsel’s failure to move for disclosure of juror identifying information pursuant to California

4

Civil Code § 237. Petitioner also argues that he was prejudiced by defense counsel’s lack of

5

diligence and delay in filing the motion for a new trial. Respondent counters that the state court

6

reasonably denied this claim because the record does not reflect that defense counsel had any

7

difficulty contacting and interviewing jurors. In reply, petitioner argues that defense counsel’s

8

delay in filing the motion for a new trial, and failure to quickly pursue the juror’s identifying

9

information was ineffective because it led the court to deny the motion based on untimeliness.

10
11

(Dkt. No. 21 at 7)
The last reasoned rejection of this claim is the decision of the California Court of

12

Appeal for the Third Appellate District on petitioner’s direct appeal. The state court addressed

13

this claim as follows:

14
15
16
17
18
19
20

[Petitioner’s] final contention is trial counsel was ineffective for
failing to file the new trial motion earlier and for inadequately
presenting the motion. We disagree.
“‘[I]n order to demonstrate ineffective assistance of counsel, a
defendant must first show counsel's performance was “deficient”
because his “representation fell below an objective standard of
reasonableness . . . under prevailing professional norms.”
[Citations.] . . . [Citation.] Prejudice is shown when there is a
“reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different. A
reasonable probability is a probability sufficient to undermine
confidence in the outcome.”’” (In re Avena (1996) 12 Cal.4th 694,
721.)

21
22
23
24

The relative lateness of the new trial motion was not a reason for
its failure at trial or on appeal. Since [petitioner] was not
prejudiced by the timing of the motion, we reject his allegation that
the late filing constituted ineffective assistance.
[Petitioner] also argues that trial counsel had two options to
better present his motion:

25
26

A.
[Petitioner] claims counsel should have moved for disclosure of
17

1
2
3
4

the jurors' identifying information pursuant to Code of Civil
Procedure section 237, relying on Juror C.S.'s declaration.
However, nothing in the record indicates that defense counsel had
problems interviewing jurors. Indeed, the new trial motion shows
that the defense was able to contact at least two of the jurors, Juror
C.S. and the jury foreman. Counsel also told the trial court that he
had not addressed each juror, as several jurors contacted by the
defense had not returned phone calls.

5
6
7
8
9
10
11
12

[Petitioner] claims a motion to disclose would serve two
functions: timely informing the court of juror misconduct and
alerting “the court to the fact that counsel needed the assistance of
the court to complete the investigation.” Neither reason justifies
filing a motion to compel juror information when the defense can
already contact jurors. A motion for continuance is a better vehicle
for informing the court of the need for further investigation, and
defense counsel already invited the court to assist it in contacting
the jurors who had not returned the defense's phone calls. As we
have already determined, [petitioner’s] allegations of juror
misconduct were insufficient to warrant an evidentiary hearing.
Likewise, a continuance for more investigation of these allegations
would have been improper. “Counsel's failure to make a futile or
unmeritorious motion or request is not ineffective assistance.”
(People v. Szadziewicz (2008) 161 Cal.App.4th 823, 836.)

13
14
15

(People v. Dixon, LD C at 12-14.)
The Sixth Amendment guarantees the effective assistance of counsel. The United

16

States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in

17

Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of

18

counsel, a petitioner must first show that, considering all the circumstances, counsel’s

19

performance fell below an objective standard of reasonableness. Id. at 687-88. After a petitioner

20

identifies the acts or omissions that are alleged not to have been the result of reasonable

21

professional judgment, the court must determine whether, in light of all the circumstances, the

22

identified acts or omissions were outside the wide range of professionally competent assistance.

23

Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003).

24

Second, a petitioner must establish that he was prejudiced by counsel’s deficient

25

performance. Strickland, 466 U.S. at 693-94. Prejudice is found where “there is a reasonable

26

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
18

1

been different.” Id. at 694. A reasonable probability is “a probability sufficient to undermine

2

confidence in the outcome.” Id.; see also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224

3

F.3d 972, 981 (9th Cir. 2000). The Court need not address both components if Petitioner makes

4

an insufficient showing on one. Strickland, 466 U.S. at 697.

5

In assessing an ineffective assistance of counsel claim “[t]here is a strong

6

presumption that counsel’s performance falls within the wide range of professional assistance.”

7

Kimmelman v. Morrison, 477 U.S. 365, 381 (1986) (citation omitted). Additionally, there is a

8

strong presumption that counsel “exercised acceptable professional judgment in all significant

9

decisions made.” Hughes v. Borg, 898 F.2d 695, 702 (9th Cir. 1990) (citation omitted).

10

Contrary to petitioner’s claim that the trial court denied the motion as untimely,

11

the trial court denied the motion based on California Code of Civil Procedure § 1150, and by

12

evaluating the objective statement of Juror C.S., ultimately finding no prejudice to petitioner.

13

(RT 511-12.) Petitioner failed to demonstrate that had defense counsel filed the motion for new

14

trial earlier, that the trial court would have granted petitioner’s motion for new trial.

15

Similarly, petitioner failed to show that a motion to release juror’s identifying

16

information would have succeeded. Indeed, the record demonstrates that defense counsel was

17

able to contact numerous jurors without filing such a motion. Jurors C.S. and C.H. were

18

successfully contacted, as evidenced by the documents produced in connection with the motion

19

for new trial. Defense counsel also informed the court that other jurors were approached but had

20

not returned telephone calls. (RT 505.)

21

Petitioner argues that he was prejudiced by defense counsel’s lack of diligence,

22

but fails to demonstrate that the outcome would have been different if defense counsel were more

23

diligent. Indeed, given the testimony adduced at trial, including petitioner’s taped confession,

24

this court cannot find that but for defense counsel’s alleged ineffectiveness, the outcome of these

25

proceedings would have been different. The state court’s rejection of petitioner’s second claim

26

for relief was neither contrary to, nor an unreasonable application of, controlling principles of
19

1

United States Supreme Court precedent. Therefore, petitioner’s second claim for relief should

2

also be denied.

3

VI. Conclusion

4
5

Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for
a writ of habeas corpus be denied.

6

These findings and recommendations are submitted to the United States District

7

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-

8

one days after being served with these findings and recommendations, any party may file written

9

objections with the court and serve a copy on all parties. Such a document should be captioned

10

“Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files

11

objections, he shall also address whether a certificate of appealability should issue and, if so, why

12

and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if

13

the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C.

14

§ 2253(c)(3). Any response to the objections shall be filed and served within fourteen days after

15

service of the objections. The parties are advised that failure to file objections within the

16

specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951

17

F.2d 1153 (9th Cir. 1991).

18

DATED: September 20, 2011

19
20

_____________________________________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE

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dixo3030.157

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