Eli E Garcia-v-MacDonald, et al

Filing 48

ORDER DENYING RESPONDENT'S 45 MOTION FOR RECONSIDERATION AND 31 MOTION TO DISMISS OR STAY THE HABEAS PETITION by Judge William H. Orrick. The Court will hold the evidentiary hearing on October 17th and 18th as scheduled to resolve the issue of juror bias. (jmdS, COURT STAFF) (Filed on 10/5/2017)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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ELI E. GARCIA,
Petitioner,

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ORDER DENYING RESPONDENT’S
MOTION FOR RECONSIDERATION
AND MOTION TO DISMISS OR STAY
THE HABEAS PETITION

v.
JIM MACDONALD, Warden,
Respondents.

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United States District Court
Northern District of California

Case No. 15-cv-04484-WHO

DKT. NOS. 31, 45

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INTRODUCTION

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Respondent asks that I reconsider my March 1, 2017 ruling granting petitioner’s motion

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for an evidentiary hearing on his juror bias claim (Dkt. No. 25) in this habeas corpus proceeding

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because I misapplied the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) and

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because under California law, the procedural bar from In re Dixon, 41 Cal. 2d 756 (1953) (the

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“Dixon bar”) applies. He also moves to dismiss the habeas petition, or stay it, because petitioner

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has discovered different facts relating to his claim of juror bias than were presented to the state

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courts. Reconsideration is not appropriate, for the reasons set forth below, and the core of

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petitioner’s habeas claim remains the same, despite some variance in the facts presented.

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Accordingly, I DENY respondent’s motions.
BACKGROUND

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Petitioner brings a claim for habeas relief on the basis of juror bias. He asserts that one of

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the jurors from his trial, referred to as Juror No. 22 at trial and here, was actually or impliedly

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biased and that he was therefore denied a fair trial under the Fifth, Sixth, and Fourteenth

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Amendments.

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Juror No. 22 is related to several key individuals and witnesses in this case, including the

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victim Jane Doe (also referred to by her first name Kayli, during the trial), the victim’s mother,

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Stacey Forstell, and the victim’s grandmother, Sandy Castaldo. Although Juror No. 22 indicated

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that Sandy Castaldo was her cousin during the voir dire process, she did not indicate any

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relationship to Stacey Forstell or the victim. Petitioner asserts that this omission was misleading

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and dishonest and suggests actual bias on the part of Juror No.22. Pet. 12-13. He also asserts that

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Juror No. 22’s familial relationship to the victim and the witnesses is sufficient to find implied

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bias.

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During voir dire, the presiding judge listed potential witnesses in the case, including Doe,
Forstell, and Castaldo. Augmented Reporter’s Transcript (“ART”) at 29 (Dkt. No. 15-4). The
court then asked if any potential jurors were familiar with the names of the potential witnesses. Id.

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United States District Court
Northern District of California

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Juror No. 22 volunteered that she was related to Castaldo:

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THE COURT: Anyone recognize any of the persons involved in this
case? Juror No. 22?
PROSPECTIVE JUROR NO. 22: I heard you say the name Sandy
Castaldo.
THE COURT: Yes.
PROSPECTIVE JUROR NO. 22: That’s my cousin.
THE COURT: Again, do you see her a lot?
PROSPECTIVE JUROR NO. 22: No, I do not.
THE COURT: When is the last time you saw her?
PROSPECTIVE JUROR NO. 22: I saw her at the bank, and I’m
going to say three months ago. She’s married to my cousin Sal.
THE COURT: I don’t know the nature of her testimony. And there
are witnesses who may or may not be at the scene of an alleged
incident. There are other witnesses who take statements. There are
other witnesses who are quite peripheral. I have no idea where she
falls on that continuum. I’ll let the attorneys ask you some questions.

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Let’s assume, for the sake of argument, she came in and she
testified. Would you evaluate her testimony by the same standards
you would any other witness?

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PROSPECTIVE JUROR NO. 22: Yes. Yes, I would.

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THE COURT: Do you think you would believe anything she said

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just because she’s your cousin?

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PROSPECTIVE JUROR NO. 22: No, I’m not well, I’m not that
close to her. I mean, I just thought I should let you know I’m related.

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THE COURT: We do need to know you’re related. It’s very
important.

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ART 76-77.
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Although Castaldo, Doe, and Forstell are all related–Castaldo is Doe’s grandmother and at
the time was her guardian, and Forstell is Doe’s mother–Juror No. 22 only volunteered that she

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knew Castaldo.
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In his petition for state habeas relief, which petitioner incorporates by reference in his
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federal petition, petitioner submitted declarations from Stacey Forstell and Juror No. 22. In her
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declaration Juror No. 22 elaborates on her relationship to the case participants and explains why
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Northern District of California

she failed to disclose more information during voir dire:
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1. I served as a juror in the trial of People v. Eli Garcia, Monterey
County Case No. SS120091A. I was Juror No. 22.
2. Salvador Castaldo is my cousin. Sandy Castaldo is married to
Salvador. Stacey Castaldo nee Forstell is Mr. Castaldo’s daughter by a
prior marriage. Kayli is Stacey’s daughter.

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3. During voir dire, I identified Sandy Castaldo as my cousin. I
anticipated that I would be dismissed from serving when I disclosed my
relation to Sandy. I was not trying to get out of jury service. However, I
expected that my relation to a witness would automatically disqualify me
from service in the case.
4. I expected that the Court or the attorneys would ask me about my
relation with Stacey Forstell. I was never asked about my relation to
Stacey. If asked, I would have disclosed that I was related to Stacey.
5. I did not recognize the name Kayli, Stacey’s daughter. Kayli was
the victim in the case.
6. Kayli and Sandy testified during the trial.

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Declaration of [Juror No. 22] (Dkt. No. 15-6, p 111-112).
Stacey Forstell further outlines Juror No. 22’s relationship to the case participants in her
declaration:
1. I am Kayli’s mother. I am thirty (30) years old. My maiden name is
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United States District Court
Northern District of California

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Stacey Castaldo. I married and took my current name in 2008.
2. My father is Salvatore “Sal” Castaldo.
3. Sal has three sisters. One of those sisters is Anne Jay. Anne Jay is
very close with her and Sal’s cousin, [Juror No. 22]. Anne and [Juror No.
22] have been close since I was a child.
4. When I was a child, Anne and [Juror No. 22] operated the Grand
Deli in Pacific Grove, California. I spent a substantial amount of time with
Anne and [Juror No. 22] at Grand Deli before the age of fourteen. I also
spent time at [Juror No. 22’s] house and saw [Juror No. 22] at various
family functions.
5. When I was twelve years old, my mother and father divorced. When
I was fourteen, my father married his current wife, Sandy Castaldo. There
was a significant amount of turmoil in my family at that time, and I had
much less interaction with many of my relatives.
6. I have not had substantial interaction with [Juror No. 22] since my
father remarried. I am friends with [Juror No. 22] on Facebook and was
friends with her before October 2012. In October 2012, my username on
Facebook was “Stacey Forstell.”
7. I became pregnant with Kayli and gave birth to her when I was
fourteen years old. When Kayli was less than one year old, I was unable to
take custody of her, and Sal and Sandy assumed responsibility of Kayli.
8. Sal and Sandy retained custody of Kayli throughout her childhood.
9. I am informed and believe that when Kayli was a child she met and
spent time with [Juror No. 22] when she visited her aunt Anne.
10. In January 2011, Kayli and Eli Garcia went to Los Angeles. Mr.
Garcia was arrested in Los Angeles. I traveled to Los Angeles to meet
Kayli. Kayli lived with me immediately after she returned from Los
Angeles and I have since gained legal custody of Kayli.
11. Prior to the trial of Eli Garcia, I had several conversations with the
prosecutor in this case, Mr. Breeden. I also met on several occasions with
the Victim Witness Advocate that had been assigned to Kayli. Her first
name was Elma.
12. Mr. Breeden subpoenaed me to appear as a witness in the trial of
Mr. Garcia.
13. On October 23, 2012, I went to the Monterey County Superior
Court for Mr. Garcia’s trial. Initially, Sandy and I were asked to wait in a
separate room from all other potential witnesses. When Sandy entered the
courtroom to testify, I waited in the courtroom hallway. When Sandy
exited the courtroom, she was crying and exclaimed: “Your f**king
cousin is on the jury!” She explained that she was referring to [Juror No.
22].
14. Immediately after I learned that [Juror No. 22] was on the jury, I
informed the Victim Witness Advocate, Elma about our family’s relation
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to [Juror No. 22]. The court was on break at this time. Elma informed me
that she would tell Mr. Breeden, and she entered the courtroom. Elma
exited the courtroom and told me that she had informed Mr. Breeden and
that Mr. Breeden said that I was excused from the subpoena and would not
be testifying. Kayli and I went to the victim’s compensation office. I did
not enter the courtroom.

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Declaration of Stacey Forstell (Forstell Decl.) (Pet. Ex. 1), (Dkt. No. 1-1).
LEGAL STANDARD

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Under Rule 54(b), a district court may revise or reconsider an order that resolved fewer

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than all of the claims at issue in a proceeding at any time before final judgment has been entered.

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Fed. R. Civ. P. 54(b).

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DISCUSSION

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Respondent raises two primary arguments in moving for reconsideration: (1) I improperly

United States District Court
Northern District of California

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applied AEDPA in granting respondent an evidentiary hearing, and (2) petitioner’s claim is

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procedurally barred by Dixon.

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I.

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WHETHER THE COURT MISAPPLIED AEDPA
Respondent argues that I did not apply the proper AEDPA standard for two reasons: first, I

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failed to find that the state court’s denial of petitioner’s juror bias claim either “(1) resulted in a

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decision that was contrary to, or involved an unreasonable application of, clearly established

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Federal law, as determined by the Supreme Court of the United States or (2) resulted in a decision

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that was based on an unreasonable determination of the facts in light of the evidence presented in

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the State court proceeding” 28 U.S. Code § 2254(d); and, second, because I failed to address

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§ 2254(e)(2), which limits the ability of district courts to grant evidentiary hearings.
Whether the state court’s decision satisfies § 2254(d)

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A.

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Under AEDPA, when a state habeas claim has been adjudicated on the merits in state

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court, a federal district court may only grant federal habeas relief if the state court decision “was

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contrary to, or involved an unreasonable application of, clearly established Federal law” or “was

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based on an unreasonable determination of the facts.” 28 U.S. Code § 2254(d). “[E]vidence

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introduced in federal court has no bearing on” whether a state court decision meets the standards

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outlined by § 2254(d) – instead a federal district court must make this assessment in light of the

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record the state court had before it. See Cullen v. Pinholster, 563 U.S. 170, 185 (2011). As a
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federal court cannot rely on evidence introduced in a federal evidentiary hearing in assessing

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whether a state court’s decision was unreasonable, generally, a federal court should not grant an

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evidentiary hearing under AEDPA unless it has first determined that the state court decision was

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unreasonable based on the record before it.
Respondent is correct that I did not clearly make this finding in my prior order. I do so

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now.
The Sixth Amendment guarantees a criminal defendant “the right to a speedy and public

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trial, by an impartial jury.” A fair jury trial is one conducted “by a panel of impartial, indifferent

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jurors.” Irvin v. Dowd, 366 U.S. 717, 722 (1961). “The failure to accord an accused a fair hearing
violates even the minimal standards of due process.” Id. “Due process means a jury capable and

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United States District Court
Northern District of California

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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). A court may presume that a juror was not impartial if she “failed to answer honestly a

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material question on voir dire” and “a correct response would have provided a valid basis for a

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challenge for cause.” McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556-57

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(1984).
Petitioner asserts in his juror bias claim that he was denied these constitutional protections

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because Juror No. 22 was biased and not impartial. Respondent does not contest that petitioner

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has presented a colorable claim of juror bias since Juror No. 22 failed to disclose her relationship

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to Doe or Stacey Forstell during voir dire. However, respondent argues that if the California

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Supreme Court decided petitioner’s juror bias claim on the merits, I must presume that its implied

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finding that Juror No. 22 was not actually biased was correct. Reconsideration Mot. at 2. It

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asserts that state court findings of fact, including implied factual findings made by appellate

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courts, must be presumed correct unless rebutted by clear and convincing evidence. See Marshall

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v. Lonberger, 459 U.S. 422, 431-36 (1983); Stevenson v. Lewis, 384 F.3d 1069, 1072 (9th Cir.

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2004).

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While this is generally true, a state court’s factual findings need not be presumed correct

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where the state court employed an inadequate fact-finding process. See Hurles v. Ryan, 752 F.3d

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768, 790 (9th Cir. 2014). The Ninth Circuit has “held repeatedly that where a state court makes
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factual findings without an evidentiary hearing or other opportunity for the petitioner to present

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evidence, ‘the fact-finding process itself is deficient’ and not entitled to deference.” Id. (citing

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Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004) (“If, for example, the state court makes

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evidentiary findings without holding a hearing and giving petitioner an opportunity to present

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evidence, such findings clearly result in an unreasonable determination of the facts.” (internal

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quotation marks omitted)); Nunes v. Mueller, 350 F.3d 1045, 1055 (9th Cir. 2003) (“But with the

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state court having refused [petitioner] an evidentiary hearing, we need not of course defer to the

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state court’s factual findings—if that is indeed how those stated findings should be

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characterized—when they were made without such a hearing.”).
Petitioner requested an evidentiary hearing to develop his juror bias claim before both the

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United States District Court
Northern District of California

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California Court of Appeal and the California Supreme Court. Despite presenting these courts

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with declarations that raised a colorable claim of juror bias, see Dkt. No. 25 at 10-13 (discussing

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the merits of petitioner’s juror bias claim), he was denied an evidentiary hearing in both courts.

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His petition was denied with no explicit factual findings. Assuming that the California Supreme

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Court adjudicated petitioner’s juror bias claim on the merits, the state courts’ implicit finding that

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Juror No. 22 was not actually biased was unreasonable under § 2254(d)(2) because the court failed

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to employ an adequate fact-finding process. See Hurles, 752 F.3d at 790. The failure to provide

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petitioner with an evidentiary hearing is especially concerning in this case where assessing the

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merits of petitioner’s claim of juror bias will rest largely on credibility determinations and may be

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impossible to properly assess without providing petitioner some means of cross-examining Juror

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No. 22.

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I conclude that, if the state court adjudicated petitioner’s juror bias claim on the merits, it

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acted unreasonably in implicitly finding that Juror No. 22 was not biased because it failed to

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employ an adequate fact-finding process. The state court’s implied factual findings were

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unreasonable under § 2254(d)(2).

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B.

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Respondent asserts that I erred by granting an evidentiary hearing without addressing §

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Whether § 2254(e)(2) bars an evidentiary hearing

2254(e)(2). Reconsideration Mot. at 2. Section 2254(e)(2) states: “If the applicant has failed to
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develop the factual basis of a claim in State court proceedings, the court shall not hold an

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evidentiary hearing on the claims.” Respondent argues that petitioner failed to develop this claim

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in state court because, even though he submitted a declaration from Juror No. 22 in state court, the

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declaration “omits key information about petitioner’s claims.” Reconsideration Mot. at 8. For

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example, respondent asserts that in preparing this declaration petitioner “did not ask Juror No. 22

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why she did not disclose her relationships with Stacey and Doe as the proceedings progressed,

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whether she recognized Doe when she testified, what the extent of her relationships with Stacey or

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Doe was, and whether those relationships affected her ability to be impartial.” Id. He contends

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that petitioner’s “failure to develop the record when Juror No. 22 was willing to provide a

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United States District Court
Northern District of California

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declaration precludes a hearing in this Court.” Id.
Respondent’s argument that petitioner failed to develop the factual record is not

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convincing. As petitioner explains, the fact that Juror No. 22 was willing to provide a declaration

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on some issues does not mean she would have been willing to provide a declaration on more

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sensitive or adversarial issues, or, for example, directly admit bias against petitioner. Given the

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sensitive nature of petitioner’s juror bias claim, petitioner acted reasonably by taking a delicate

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approach in questioning Juror No. 22 while attempting to obtain a voluntary declaration from her.

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The more accusatory questions respondent asserts petitioner should have asked are more

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appropriately posed in an adversarial proceeding where petitioner has the opportunity to cross-

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examine or impeach Juror No. 22, and where the court would have the opportunity to make a

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credibility determination as to Juror No. 22’s statements. This is why petitioner sought an

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evidentiary hearing in the state court to further develop his juror bias claim. And this is precisely

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why the Ninth Circuit has held that “[a] petitioner who has previously sought and been denied an

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evidentiary hearing has not failed to develop the factual basis of his claim” under § 2254(e)(2).

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Hurles, 752 F.3d at 791.

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Because petitioner attempted to develop the facts of his juror bias claim in state court and

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did not further develop them only because he was denied an evidentiary hearing, petitioner did not

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fail to develop the factual record in state court under § 2254(e)(2). Section 2254(e)(2) does not

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bar an evidentiary hearing in this case.
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C.

Is petitioner entitled to an evidentiary hearing?

Assuming that petitioner’s juror bias claim was determined on the merits, I reaffirm my

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prior conclusion that he is entitled to an evidentiary hearing. If a petitioner has not failed to
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develop the factual basis of his claim in state court, a federal court must grant an evidentiary
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hearing if he (1) would be entitled to a hearing under Townsend v. Sain, 372 U.S. 293, 313 (1963),
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and (2) if his allegations, if true, would entitle him to habeas relief, Stanley v. Schriro, 598 F.3d
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612, 624 (9th Cir. 2010).
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A habeas petitioner is entitled to an evidentiary hearing under Townsend for several
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reasons, including if (1) “the state factual determination is not fairly supported by the record as a
whole”; or (2) “the fact-finding procedure employed by the state court was not adequate to afford
a full and fair hearing.” Townsend, 372 U.S. at 313. I have already concluded that the fact-

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Northern District of California

finding procedure employed by the state court was unreasonable as it failed to provide petitioner
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with an evidentiary hearing on his juror bias claim. Petitioner’s claim meets the Townsend

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requirement.
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Petitioner’s claim that Juror No. 22 was dishonest in failing to disclose her relationship to

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Stacey Forstell and Doe, and was biased against him, if true, would entitle him to habeas relief.
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Stanley, 598 at 624. All criminal defendants are entitled to a fair trial before “a panel of impartial,
indifferent jurors.” Irvin, 366 U.S. at 722. A defendant is deprived of his right to a fair trial and
to due process when a juror is actually biased against him. See Phillips, 455 U.S. at 217 (“Due
process means a jury capable and willing to decide the case solely on the evidence before it.”).

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While actual bias may be demonstrated in various ways, a court should presume that a juror was
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biased if she “failed to answer honestly a material question on voir dire” and “a correct response
would have provided a valid basis for a challenge for cause.” McDonough, 464 U.S. at 556-57. If

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petitioner can establish that Juror No. 22 was dishonest in failing to disclose her relationship to
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Stacey Forstell or Doe and that this relationship, if revealed, would have justified dismissing Juror
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No. 22 for cause, he will be entitled to relief.
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As the state court implemented an inadequate fact-finding procedure and, petitioner’s

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allegations of juror bias, if true, would entitle him to habeas relief, petitioner is entitled to an
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evidentiary hearing.
I conclude that under the proper AEDPA standard my prior order, granting petitioner’s

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request for an evidentiary hearing on his juror bias claim, should still stand.

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II.

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WHETHER THE DIXON BAR PROHIBITS PETITIONER’S JUROR BIAS
CLAIM
Respondent has raised a new argument that petitioner’s juror bias claim is procedurally

barred under California’s Dixon bar. Petitioner asserts that the Dixon bar does not apply because
the California Supreme Court’s decision was ambiguous. As respondent did not assert the Dixon

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bar in his initial Answer, I did not address this argument in my prior order and do so for the first
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time now.
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In seeking habeas relief before the California Supreme Court, petitioner asserted one two11
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Northern District of California

part claim for relief: Juror No. 22 was biased, and his trial counsel was ineffective in failing to
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identify this bias. In denying the petition, the California Supreme Court cited to Dixon and Duvall
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without explanation or analysis. As the Supreme Court held in Lee, Dixon is an adequate
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California procedural bar sufficient to preclude federal review. Lee, 136 S.Ct. at 1805. The
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parties agree that Duvall is not an adequate procedural bar to prohibit federal review and indicates
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that a claim was determined on the merits. See e.g. Richardson v. Curry, No. 04-cv-2712-RMW,
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2015 WL 1064608 at *3 (N.D. Cal. Mar. 11, 2015). This raises the question of whether the
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California Supreme Court’s decision clearly applied Dixon to petitioner’s juror bias claim, or

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whether the decision was ambiguous.
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A state court opinion is ambiguous when it is unclear as to whether the disposition of a
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claim is based on an independent state procedural bar or on the federal merits. Colman v.
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Thompson, 501 U.S. 722, 732-33 (1991). Because of this ambiguity, when a state court decision
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is ambiguous federal courts will not apply the procedural bar. Harris v. Reed, 489 U.S. 255, 263
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(1989). A “state court opinion that summarily denies more than one claim with a citation to more

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than one state procedural bar is ambiguous, and therefore there is no procedural default if any one
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of the state procedural bars is not adequate and independent.” Johnson v. Haviland, 2012 WL
1144059 at *7 (N.D. Cal. Mar. 30, 2012). “Under some circumstances, a federal court will be able

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to resolve an ambiguous order. For example, if the order affirms a previous lower court order that

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relies on the same grounds and specifies which grounds are applicable to which claims, there is no

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reason to assume that the appellate court applied different grounds to different claims.” Koerner

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v. Grigas, 328 F.3d 1039, 1052 (9th Cir. 2003). However, where a state court opinion is

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ambiguous, generally it is not appropriate for a federal court to “usurp the role of the state courts”

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and attempt to “guess at which grounds might be applicable to which claims.” Id.; see also

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Valerio v. Crawford, 306 F.3d 742, 774-74 (9th Cir. 2002)(en banc).

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The parties agree that the California Supreme Court decision is ambiguous as it disposed

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of petitioner’s juror bias and ineffective assistance claims by citing to two California procedural
bars without clearly explaining which bar applies to which claim. Respondent argues that this

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United States District Court
Northern District of California

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ambiguity can be resolved and that the California court clearly intended to apply Dixon to

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petitioner’s juror bias claim rather than his ineffective assistance of counsel claim, as Dixon does

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not apply to ineffective assistance claims. See In re Robbins, 18 Cal. 4th 770, 813 n.34 (1998)

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(“We do not apply [the Dixon bar] to claims of ineffective assistance of trial counsel, even if the

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habeas corpus claim is based solely upon the appellate record” (citing People v. Mendoza Tello, 15

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Cal. 4th 264, 267 (1997))).

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Petitioner rebuts that the California Supreme Court clearly did not intend to apply the

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Dixon bar to his juror bias claim as Dixon does not apply to habeas claims relying on evidence and

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exhibits “from outside the appellate record” unless that evidence “contains nothing of substance

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not already in the appellate record.” Id. He asserts that his juror bias claim falls under this

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category as it relies on declarations from Juror No. 22 and Stacey Forstell that include material

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information not included within the appellate record.

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There are certainly strong arguments that these declarations contain evidence of substance

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not included in the trial record. For example, Juror No. 22 states in her declaration that she

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“expected that the Court or the attorneys would ask me about my relation with Stacey Forstell. I

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was never asked about my relation to Stacey. If asked, I would have disclosed that I was related to

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Stacey.”

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questions as the court did ask Juror No. 22 whether she recognized any of the witnesses, including

Declaration of [Juror No. 22] (Dkt. No. 15-6, p 111-112).

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Stacey, and yet Juror No. 22 failed to disclose this information. Why she failed to disclose this

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information remains unclear. The declarations also speak to Juror No. 22’s relationship to Sandy

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Castaldo, Stacey Forstell, and Doe. Juror No. 22 states in her declaration that “I anticipated that I

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would be dismissed from serving when I disclosed my relation to Sandy. I was not trying to get

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out of jury service. However, I expected that my relation to a witness would automatically

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disqualify me from service in the case.” Id. Stacey Forstell reveals in her declaration that both

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she and her mother, Sandy, were shocked to discover that Juror No. 22 was on the jury: Stacey

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declares that when Sandy left the courtroom after testifying “she was crying and exclaimed: ‘Your

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f**king cousin is on the jury!’ She explained that she was referring to [Juror No. 22].”

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Declaration of Stacey Forstell (Forstell Decl.) (Pet. Ex. 1), (Dkt. No. 1-1). Stacey further declares

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United States District Court
Northern District of California

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that “[i]mmediately after I learned that [Juror No. 22] was on the jury, I informed the Victim

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Witness Advocate, Elma about our family’s relation to [Juror No. 22].” Id. Juror No. 22’s,

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Stacey’s, and Sandy’s surprise and reactions to Juror No. 22 being on the jury suggest that Juror

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No. 22’s relationship to Stacey, Sandy, and Doe, was sufficiently close to make her an inadequate

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juror, or at least raise substantial questions about her impartiality. These facts are not part of the

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appellate record and are directly relevant to petitioner’s juror bias claim. It seems, under the

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California state law, that Dixon would not apply to petitioner’s juror bias claim.

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While I do not think Dixon would apply to either of petitioner’s claims before the

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California Supreme Court, federal courts cannot substantively review a state court’s application of

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a state rule. Therefore, I cannot assess whether the California Supreme Court may have

21

incorrectly applied the Dixon bar to petitioner’s juror bias claim. Instead, I must determine

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whether the California Supreme Court unambiguously did apply the Dixon bar to plaintiffs’ juror

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bias claim. While the parties have raised credible arguments why the California Supreme Court

24

likely did not attempt to apply the Dixon bar to both of petitioner’s claims, it appears substantially

25

more likely that the Court intended to apply Dixon to the juror bias claim and not the ineffective

26

assistance of counsel claim, as it does not apply Dixon to ineffective assistance claims as a blanket

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rule. If the Court intended to apply Dixon only to petitioner’s ineffective assistance claim, it

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would have been going against well-established, non-merits based precedent. If it intended to
12

1

apply Dixon to petitioner’s juror bias claim, it could have done so by reaching a different

2

conclusion than I on whether petitioner’s declarations contain evidence that is substantively

3

different than that in the trial record. On this evidence I think it is clear that the Court intended to

4

apply Dixon to petitioner’s juror bias claim.

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Although I conclude that the Dixon bar applies to petitioner’s juror bias claim, he may still

6

overcome this bar by demonstrating that he meets one of the exceptions to a procedural bar, such

7

as cause and prejudice.
A.

9

Unless a habeas petitioner shows cause and prejudice, a district court may not reach the

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merits of “procedurally defaulted claims in which the petitioner failed to follow applicable state

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United States District Court
Northern District of California

8

procedural rules” in raising the claim. Clark v. Lewis, 1 F.3d 814, 819 (9th Cir. 1993).

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13

Cause and Prejudice

1.

Cause

To establish cause for a procedural default, a petitioner must show that “some objective

14

factor external to the defense impeded counsel’s efforts to comply with the State’s procedural

15

rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986); see also Bousley v. United States, 523 U.S.

16

614, 622-23 (1998) (applying Carrier standard to § 2255 motion). “Cause . . . requires a showing

17

of some external impediment preventing counsel from constructing or raising the claim.”

18

McCleskey v. Zant, 499 U.S. 467, 497 (1991) (internal brackets omitted). A petitioner need not

19

allege a constitutional violation in order to establish cause for the procedural default. See Manning

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v. Foster, 224 F.3d 1129, 1134 (9th Cir. 2000).

21

Ineffective assistance of counsel under Strickland v. Washington, 466 U.S. 668, 690

22

(1984), may constitute cause for the procedural default. See Carrier, 477 U.S. 478, 488 (1986);

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United States v. De la Fuente, 8 F.3d 1333, 1337 (9th Cir. 1993). However, attorney ignorance,

24

inadvertence, or error short of that which is constitutionally ineffective under the Sixth

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Amendment is not generally cause for a procedural default. See Carrier, 477 U.S. at 487.

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As I have previously found, petitioner is likely able to show that his trial counsel’s failure

27

to inquire into Juror No. 22’s relationship to Castaldo, Forstell, and Doe fell below an objective

28

standard of reasonableness. There is no plausible reason to keep a juror who is potentially biased
13

1

against your client on the panel. Petitioner likely satisfies the first prong of Strickland and

2

therefore demonstrates cause sufficient to excuse a procedural default. See id. at 488.

3

2.

Prejudice

In order to show prejudice, the petitioner bears the burden of showing not merely that the

4
5

error created a possibility of prejudice, but that the error worked to his actual and substantial

6

disadvantage, infecting the entire trial with constitutional error. See Carrier, 477 U.S. at 494;

7

Leavitt v. Arave, 383 F.3d 809, 838 (9th Cir. 2004). The Court has “refrained from giving precise

8

content to the term prejudice.” Frady, 456 U.S. at 168 (internal quotations omitted). However,

9

the showing of prejudice is significantly greater than the showing necessary for plain error for

10

direct appeals. See Carrier, 477 U.S. at 493-94; Frady, 456 U.S. at 166-68.
I previously found that petitioner’s ineffective assistance claim does not satisfy the second

United States District Court
Northern District of California

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12

prong of Strickland and therefore cannot establish prejudice. Dkt. No. 25 at 16. But petitioner

13

points out that juror bias is a structural error. Amended Traverse (Dkt. No. 44) at 16. Where

14

ineffective assistance of counsel results in a structural error, there is a presumption of prejudice.

15

Carrera v. Ayers, 670 F.3d 938, 956 (9th Cir. 2011).
No evidence on the record conclusively demonstrates the Juror No. 22 was actually biased.

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17

When underlying facts concerning cause or prejudice, such as the existence of juror bias, are in

18

dispute, a district court should conduct an evidentiary hearing. See Hines v. Enomoto, 658 F.2d

19

667, 674 (9th Cir. 1981). Therefore, petitioner should be given the opportunity to explore whether

20

Juror No. 22’s relationship with three witnesses in the case resulted in juror bias. If, as a result of

21

the evidentiary hearing, I find that Juror No. 22 was biased, the second prong of Strickland would

22

be satisfied and prejudice established. Such a finding would make Claim 1 ripe for resolution.

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III.

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RESPONDENT’S MOTION TO DISMISS OR STAY HABEAS PETITION
Respondent filed a motion to dismiss or stay habeas petition as unexhausted on September

25

25, 2017, arguing that the new declarations filed by petitioner “fundamentally alter the entire

26

factual basis of petitioner’s juror misconduct claim” and has not been presented in state court.

27

Mot. at 1 (Dkt. No. 45). Petitioner counters that the declarations merely “supplement and clarify”

28

the record and do not change the “ultimate question of disposition.” Opp’n at 3-4 (Dkt. No. 46). I
14

1
2

agree.
In order to exhaust a claim, the petitioner must fully and fairly “present both the factual

3

and legal basis for the claim to the state court.” Robinson v. Schriro, 595 F.3d 1086, 1101 (9th Cir.

4

2010); see also 28 U.S.C. § 2254(b) (1994). “Full and fair presentation . . . requires a petitioner to

5

present the substance of his claim to the state courts, including a reference to a federal

6

constitutional guarantee and a statement of facts that entitle the petitioner to relief.” Scott v.

7

Schriro, 567 F.3d 573, 582 (9th Cir. 2009).

8
9

Although petitioner uses the new declarations to clarify some factual inaccuracies from
previous declarations, he has undeniably presented both “the legal and factual basis of his federal
constitutional claim” to the state court. Robinson, 595 F.3d at 1102. Some of the underlying

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United States District Court
Northern District of California

10

evidence is different than what was presented to the state courts, but he previously identified facts

12

demonstrating that Juror No. 22 was related to three key witnesses in the case and was dishonest

13

during voir dire. The state courts denied the request for an evidentiary hearing, and there is no

14

reason to think on the current record that they would have ruled differently. The crux of

15

petitioner’s case remains the same, and the new evidence does not change the conclusion that

16

petitioner has satisfied the exhaustion requirement. “[A]s long as the ultimate question for

17

disposition has remained the same in state and federal court, . . . variations in the legal theory or

18

factual allegations urged in its support are entirely legitimate.” Id. at 1102 n. 14 (internal

19

quotations omitted). Therefore, respondent’s motion is DENIED.
CONCLUSION

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21

Respondent’s motion for reconsideration is DENIED. Respondent’s motion to dismiss or

22

stay habeas petition as unexhausted is DENIED. The Court will hold the evidentiary hearing on

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October 17th and 18th as scheduled to resolve the issue of juror bias.

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IT IS SO ORDERED.
Dated: October 5, 2017

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27
William H. Orrick
United States District Judge

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