Mason v. Paramo et al

Filing 28

ORDER (1) Adopting 26 Report and Recommendation; And (2) Granting in part 18 Motion to Dismiss. It is ordered that the Court (1) Overrules petitioner's objections and (2) Adopts the relevant portions of Judge Dembin's R&R, and (3) Grants in part Respondent's Motion to Dismiss. Accordingly, the Court dismi8sses with prejudice only ground two of the Petition. Petitioner may proceed with ground one of his Petition in this Court. Signed by Judge Janis L. Sammartino on 6/6/2017. (dxj)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 MICHAEL BARAKA MASON, Case No.: 16-CV-1176 JLS (MDD) Petitioner, 12 13 v. 14 ORDER (1) ADOPTING REPORT AND RECOMMENDATION; AND (2) GRANTING IN PART MOTION TO DISMISS DANIEL PARAMO, Warden, et al., Respondents. 15 (ECF No. 26) 16 17 18 Presently before the Court are: (1) Respondent Daniel Paramo’s Motion to Dismiss 19 the Petition for Writ of Habeas Corpus as a Mixed Petition, and Claim 2 as Unexhausted 20 and Untimely, (“MTD,” ECF No. 18); (2) Magistrate Judge Mitchell D. Dembin’s Report 21 and Recommendation (“R&R”) advising that the Court should grant in part Respondent’s 22 MTD, (ECF No. 26); and (3) Petitioner’s Objections to the R&R, (“R&R Objs.,” ECF No. 23 27). Respondent did not file a reply to Petitioner’s Objections. After considering the 24 parties’ arguments and the law, the Court (1) OVERRULES Petitioner’s Objections, (2) 25 ADOPTS the relevant portions of the R&R, and (3) GRANTS IN PART Respondent’s 26 Motion to Dismiss. 27 /// 28 /// 1 16-CV-1176 JLS (MDD) 1 BACKGROUND 2 Judge Dembin’s R&R contains a thorough and accurate recitation of the factual and 3 procedural histories underlying the instant Petition for Writ of Habeas Corpus. (See R&R 4 2–4.) This Order incorporates by reference the background as set forth therein. 5 LEGAL STANDARD 6 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 7 court’s duties regarding a magistrate judge’s report and recommendation. The district court 8 “shall make a de novo determination of those portions of the report . . . to which objection 9 is made,” and “may accept, reject, or modify, in whole or in part, the findings or 10 recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(c); see also United 11 States v. Raddatz, 447 U.S. 667, 673–76 (1980). In the absence of a timely objection, 12 however, “the Court need only satisfy itself that there is no clear error on the face of the 13 record in order to accept the recommendation.” Fed. R. Civ. P. 72 advisory committee’s 14 note (citing Campbell v. U.S. Dist. Court, 510 F.2d 196, 206 (9th Cir. 1974)). 15 16 ANALYSIS I. Summary of the R&R Conclusion 17 On May 11, 2016 Petitioner filed a Petition for Writ of Habeas Corpus in this district. 18 (“Petition,” ECF No. 1.) Petitioner challenges his conviction on two grounds: (1) the trial 19 court erred in admitting the preliminary hearing testimony of Hana Jabbar at trial; and (2) 20 Petitioner received ineffective assistance of counsel when his attorney failed to challenge 21 the trial court’s decision to permit the guilty verdict to stand and the case to proceed to 22 sentencing when Juror 4 expressed she had reasonable doubt after the verdict was given. 23 (R&R 21 (citing Petition 12–13).) 24 On October 25, 2016, Respondent Paramo filed a Motion to Dismiss the Petition. 25 (ECF Nos. 18, 19.) Respondent conceded that ground one was exhausted and thus 26 27 1 28 Pin citations to docketed material refer to the CM/ECF numbers electronically stamped at the top of each page. 2 16-CV-1176 JLS (MDD) 1 reviewable by this Court, but argued that ground two was unexhausted and untimely, thus 2 counseling dismissal of both claims. (R&R 4 (citing ECF No. 18, at 9).) Petitioner 3 acknowledged that ground two was unexhausted, but argued that the Court should stay the 4 case pending exhaustion of ground two of the Petition, or, in the alternative, to dismiss 5 only ground two. (Id. (citing ECF No. 25, at 8).) 6 Judge Dembin first concluded that the Petition was timely, (R&R 5), and next 7 considered whether the Court should stay the Petition pending exhaustion of ground two 8 in state court under either Kelly v. Small, 315 F.3d 1063 (9th Cir. 2002), abrogated on other 9 grounds by Robbins v. Carey, 481 F.3d 1143 (9th Cir. 2007), or Rhines v. Weber, 544 U.S. 10 269 (2005). Judge Dembin first concluded that a stay under Kelly2 would be futile “because 11 the statute of limitations already expired and Petitioner is not entitled to toll the limitations 12 period or to relate his unexhausted claim back to ground one of the Petition.” (R&R 8.) 13 Second, Judge Dembin concluded that a stay under Rhines3 would be inappropriate because 14 Petitioner did not demonstrate good cause for failing to raise his unexhausted claim in state 15 court and that Petitioner’s claim is not potentially meritorious. (Id. at 9–15.) Without any 16 basis for a stay, Judge Dembin recommends that the Court partially grant Respondent’s 17 motion and dismiss ground two of the Petition with prejudice. (Id. at 16.) 18 II. Summary of Petitioner’s Objections 19 Petitioner solely objects to Judge Dembin’s conclusion that a stay is not warranted 20 under Rhines. (R&R Objs. 2.) First, Petitioner argues that Judge Dembin erred in relying 21 22 23 24 25 26 27 28 “Kelly permits a district court to dismiss unexhausted claims and stay the remaining claims pending exhaustion of the dismissed claims. Kelly, 315 F.3d at 1070–71. The petitioner must seek to add the dismissed claims back in through amendment after exhausting them in state court before the AEDPA statute of limitations expires. King v. Ryan, 564 F.3d 1133, 1138–41 (9th Cir. 2009).” (R&R 6–7.) 2 “Rhines permits a district court to stay a mixed petition in its entirety. King, 564 F.3d at 1139–40. To stay the entire mixed petition without dismissing unexhausted claims, the petitioner must show good cause for failing to exhaust the claims in state court before filing the federal petition and that the unexhausted claims are not ‘plainly meritless.’ Rhines, 544 U.S. at 277–78. A stay under Rhines is inappropriate where the petitioner has engaged in ‘abusive litigation tactics or intentional delay.’ Id.” (R&R 8–9.) 3 3 16-CV-1176 JLS (MDD) 1 on the prejudice prong of the Strickland4 standard, as applied to claims for ineffective 2 assistance of counsel, because it has no bearing on the “good cause” determination under 3 Rhines. (Id. at 3.) Second, as to the potential merit of Petitioner’s claim, Petitioner argues 4 that Judge Dembin’s reliance on the Strickland prejudice standard improperly heightened 5 the burden for ordering a stay. (Id. at 4.) 6 III. Given Petitioner’s Objections, the Court will review, de novo, whether the Court 7 8 Court’s Analysis should stay the Petition pending exhaustion of ground two pursuant to Rhines. 9 Rhines permits a district court to stay a mixed petition (i.e., a petition with exhausted 10 and unexhausted claims) in its entirety. King v. Ryan, 564 F.3d 1133, 1139–40 (9th Cir. 11 2009). To stay the entire mixed petition without dismissing unexhausted claims, the 12 petitioner must show (A) good cause for failing to exhaust the claims in state court before 13 filing the federal petition, (B) that the unexhausted claims are not “plainly meritless,” and 14 (C) that the petitioner has not engaged in “abusive litigation tactics or intentional delay.” 15 Rhines, 544 U.S. at 277–78; see also King, 564 F.3d at 1139. 16 A. Good Cause 17 The first factor in a Rhines analysis is whether Petitioner has demonstrated good 18 cause for failing to raise his unexhausted claim in state court. “There is little authority on 19 what constitutes good cause to excuse a petitioner’s failure to exhaust.” Blake v. Baker, 20 745 F.3d 977, 980 (9th Cir. 2014); Pace v. DiGuglielmo, 544 U.S. 408, 416–17 (2005). 21 But the Ninth Circuit has recently explained that 22 [t]he good cause element is the equitable component of the Rhines test. It ensures that a stay and abeyance is available only to those petitioners who have a legitimate reason for failing to exhaust a claim in state court. As such, good cause turns on whether the petitioner can set forth a reasonable excuse, supported by sufficient evidence, to justify that failure. 23 24 25 26 27 28 4 Strickland v. Washington, 466 U.S. 668 (1984). 4 16-CV-1176 JLS (MDD) 1 Blake, 745 F.3d at 982 (citing Pace, 544 U.S. at 416). Thus, the Blake Court held that 2 ineffective assistance “by post-conviction counsel can be good cause for a Rhines stay” 3 where a petitioner’s showing of good cause is concrete and reasonable, not a bare allegation 4 of ineffective assistance of counsel. Id. at 983. 5 As an initial matter, the Court agrees with Petitioner that a discussion of the merits 6 of Petitioner’s ineffective assistance of counsel (“IAC”) claim should not be considered in 7 the “good cause” portion of the Rhines analysis. Rather, the Court should simply determine 8 whether Petitioner’s excuse for failing to exhaust the claim is reasonable and supported by 9 sufficient evidence. See Blake, 745 F.3d at 982. 10 The Court finds that Petitioner has demonstrated good cause under Rhines. As 11 background, part of Petitioner’s IAC claim is that his appellate counsel failed to raise any 12 issues regarding Juror 4 in his appeal. (R&R 11 (citing ECF No. 25, at 5; Lodg. Nos. 3, 5, 13 7).) Specifically, Juror 4 expressed she had “reasonable doubt . . . on certain counts” after 14 the guilt phase and during the penalty phase of Petitioner’s trial. (Id. at 10 (citing ECF No. 15 1, at 104).) After some discussion, Petitioner’s trial counsel requested that the jury return 16 to the jury room and reopen their deliberations or, in the alternative, a mistrial. (Id. at 10– 17 11 (citing ECF No. 1, at 104–106; 157).) The trial court denied the requests. (Id. (citing 18 ECF No. 101, at 127–176).) While Petitioner’s trial counsel raised the issue, Judge Dembin 19 found that Petitioner’s appellate counsel failed to raise any issues regarding Juror 4. (R&R 20 11.) Importantly for the “good cause” analysis, Judge Dembin found that 21 22 23 24 25 26 27 28 [t]he record supports Petitioner’s argument that appellate counsel failed to raise any issues regarding Juror 4. (ECF No. 25 at 5; Lodg. Nos. 3, 5, 7). Appellate counsel did not include this claim in the appellate brief, reply brief or the petition for review in the California Supreme Court, despite the fact that the Reporter’s Transcript includes approximately 65 pages on the issue. (Lodg. Nos. 3, 7; ECF No. 1 at 99–122, 127–152, 157–176). Petitioner has also shown that he relied upon the assurances of his trial and appellate counsel that they would raise any necessary claims for him. (See ECF No. 1 at 13) (indicating that Petitioner thought his attorney raised this issue in his Petition for Review). Petitioner has 5 16-CV-1176 JLS (MDD) 1 2 made a sufficient showing that his appellate attorney may have acted unreasonably because he had notice of the juror claim and failed to exhaust the claim by presenting it to the state’s highest court. 3 4 (Id. at 11–12.) After a review of the record, the Court agrees with Judge Dembin’s 5 assessment and thus finds that Petitioner has adequately demonstrated good cause for 6 failing to raise his unexhausted claim in state court (specifically, he demonstrated that he 7 relied on his appellate counsel to raise such claims on his behalf). Nothing more is needed 8 for this consideration. Thus, while Judge Dembin goes on to assess the merits of 9 Petitioner’s IAC claim in his “good cause” analysis, (id. at 12–15), and ultimately 10 concludes that Petitioner has not shown “good cause” as a result of that assessment, that 11 analysis is more appropriately presented under the claim merit analysis. Accordingly, the 12 Court will consider that portion of Judge Dembin’s analysis below, infra Part III.B. 13 B. Potential Merit of Petitioner’s Claim 14 The second factor in a Rhines analysis is whether a petitioner’s claims are “plainly 15 meritless,” Rhines, 544 U.S. at 277, or, stated differently, are “potentially meritorious,” id. 16 at 278. 17 As a threshold matter, the Court disagrees with Petitioner’s argument that the Court 18 cannot consider the prejudice prong of Strickland in assessing his IAC claim. As discussed 19 below, prejudice is a required element of an IAC claim, and thus the Court must consider 20 it to determine whether Petitioner’s IAC claim has some merit. See, e.g., Gonzalez v. Wong, 21 667 F.3d 965, 982 (9th Cir. 2011) (considering the prejudice/materiality prong of a 22 potential Brady v. Maryland, 373 U.S. 83 (1963), violation in the context of a Rhines merits 23 analysis). But Petitioner further argues that the second Rhines consideration, whether a 24 claim is “plainly meritless” or “potentially meritorious,” is a generous standard and thus 25 does not require him to demonstrate that he will definitely prevail or even that he is likely 26 to prevail on the merits. (R&R Objs. 4.) The Court agrees with Petitioner on this point, and 27 notes that this approach is consistent with the Ninth Circuit’s jurisprudence in Rhines 28 analyses. See, e.g., Gonzalez, 667 F.3d at 980 (“Our discussion below is only to 6 16-CV-1176 JLS (MDD) 1 demonstrate why we conclude that Gonzales has a colorable or potentially meritorious 2 Brady claim such that a reasonable state court could find a Brady violation.” (emphases 3 added).) Accordingly, the Court conducts its analysis of Petitioner’s IAC claim with this 4 standard in mind. 5 “In order to establish ineffective assistance of counsel, a petitioner must prove both 6 deficient performance by his counsel and prejudice caused by the deficiency.” Gonzalez, 7 667 F.3d at 987. “To demonstrate deficient performance [Petitioner] must show that 8 counsel’s performance ‘fell below an objective standard of reasonableness’ based on ‘the 9 facts of the particular case [and] viewed as of the time of counsel’s conduct.’” Id. (citing 10 Strickland v. Washington, 466 U.S. 668, 688–90 (1984)). “In order to establish prejudice 11 [Petitioner] ‘must show that there is a reasonable probability that, but for counsel’s 12 unprofessional errors, the result of the proceeding would have been different. A reasonable 13 probability is a probability sufficient to undermine confidence in the outcome.’” Id. (citing 14 Strickland, 466 U.S. at 694). 15 As discussed, the crux of Petitioner’s IAC claim is that his counsel—both trial and 16 appellate—failed to inquire into the reason for Juror 4’s doubt or raise the issue on appeal. 17 (R&R Objs. 5; see also ECF No. 25, at 4–5; ECF No. 1, at 13.) Specifically, Petitioner 18 argues that as a result of Juror 4’s doubt, the jury’s verdict was not unanimous, thus 19 violating his constitutional rights to a unanimous jury verdict. (R&R 12; Objs 4–5; ECF 20 No. 25, at 5; ECF No. 1, at 13.) Judge Dembin recounted the factual and procedural basis 21 for Petitioner’s IAC claim as follows: 22 23 24 25 26 27 28 Petitioner focuses on circumstantial evidence showing that “counsel [failed] to raise any issues regarding Juror 4 [which shows] counsel’s ineffective assistance [and] demonstrates good cause for failing to exhaust his claim.” (ECF No. 25 at 5). In his Petition, Petitioner attaches a Reporter’s Transcript where Juror 4 expressed she had “reasonable doubt . . . on certain accounts” after the guilt phase and during the penalty phase of the trial. (ECF No. 1 at 104). The record reflects that the trial judge asked Juror 4 why she did not express her reasonable doubt when he polled the jury. (ECF No. 1 at 104–05). Juror 4 stated she had “basically overcome the doubt that [she] had. And it 7 16-CV-1176 JLS (MDD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 continued to come up in [her] mind [after the verdicts were returned and during the intervening time.]” (Id. at 105). Juror 4 then stated that at the time the verdict was given, she supported the verdict and it was her verdict, but that she still wanted to speak privately with the judge to discuss “very specific” allegations or charges. (Id. at 106). The trial judge asked whether Juror 4 understood what reasonable doubt means and whether she had done outside research. (Id. at 105–06). Juror 4 explained she understood what reasonable doubt means and that she had not done outside research. (Id.). The trial judge then explained that speaking privately with Juror 4 would be inappropriate and indicated that nothing Juror 4 said raised issues regarding juror misconduct. (Id.). In response to Juror 4’s statement, Petitioner’s trial counsel requested “the jury be directed to return to the jury room and reopen their deliberations concerning issues in the guilt phase,” or in the alternative, requested a mistrial. (Id. at 157). The People requested the court determine whether Juror 4 should be excused for cause. (Id. at 169). On November 16, 2012, the court permitted oral argument on the issues and ultimately concluded that “[t]here is nothing to correct at the present time. Those verdicts were polled and recorded. The fact she has now had some buyer’s remorse, as suggested, that opens a pandora’s box for incredible mischief.” (Id. at 170). The court did not reopen jury deliberations, did not grant a mistrial and did not excuse Juror 4 for cause. (Id. at 127–176). 18 19 (R&R 10–11.) 20 As an initial matter, the Court agrees with Petitioner and Judge Dembin that, because 21 his case was a capital case, Petitioner had a constitutional right to a unanimous jury under 22 California law and possibly under Federal law as well. (R&R 12; see also People v. Collins, 23 17 Cal. 3d 687, 693 (1976) (California law requires unanimous jury verdict in criminal 24 cases); cf. Schad v. Arizona, 501 U.S. 624, 634 n.5 (1991) (“[A] state criminal defendant, 25 at least in noncapital cases, has no federal right to a unanimous jury verdict . . . .”). 26 Nevertheless, Judge Dembin found that Petitioner had not made a well-argued claim of 27 unanimous jury infringement or juror misconduct. (R&R 12.) Specifically, Judge Dembin 28 found that 8 16-CV-1176 JLS (MDD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 [e]ven if a unanimous jury is constitutionally required, there was a unanimous jury verdict and, when individually polled, no juror expressed any equivocation or hesitation regarding the verdict. (Lodg. No. 1-48 at 7915–30). Specifically, the Court asked “Juror No. 4, were these and are these your personal verdicts as read by the court?” (Id. at 7929). Juror 4 responded “yes.” (Id.). Additionally, Juror 4 told the court that she overcame her reasonable doubt before giving the verdict. (ECF No. 1 at 105). Accordingly, no right to a unanimous jury verdict was infringed in this case. Leon v. Cate, 617 Fed. App’x 783, 783 (9th Cir. 2015) (“The jury returned a verdict, the clerk read it in open court, the jury collectively affirmed it without dissent, and it was recorded. . . . [T]he validity of the verdict was not subject to attack at that point unless [the petitioner] established that the jury committed prior misconduct in reaching the verdict.”); see Fuentes v. Adams, No. SA CV 06-182-GW (CW), 2015 U.S. Dist. LEXIS 180156, at *47-48 (C.D. Cal. Sept. 2, 2015) (A Magistrate Judge’s Report and Recommendation, which found no infringement of a unanimous jury verdict where the record showed that all jurors had been po[l]led and supported the verdict); see also Fuentes v. Adams, No. SA CV 06-182GW (CW), 2016 U.S. Dist. LEXIS 98346 (adopting the Magistrate Judge’s Report and Recommendation). 15 16 (R&R 12–13.) 17 But despite the appearance of a unanimous jury verdict, Petitioner’s core objection 18 to Judge Dembin’s analysis is premised on unexplored potential juror misconduct. 19 Specifically, Petitioner acknowledges that while the jury was unanimously polled, the 20 “record reflects that Juror 4’s statements raised serious questions regarding whether 21 [Petitioner] had been deprived of a unanimous jury not influenced by juror misconduct 22 [because] neither the trial court nor [Petitioner’s] own trial counsel insisted on an adequate 23 inquiry to ensure that [Petitioner’s] rights were protected.” (R&R Objs. 4–5.) 24 Judge Dembin disagreed with this juror misconduct claim, finding that 25 [a] unanimous verdict may still be attacked if the verdict was subject to juror misconduct prior to reaching the verdict. Leon, 617 Fed. App’x at 783. Thus, the Court must consider whether the Sixth Amendment’s guarantee of the right to a “fair trial by a panel of impartial, ‘indifferent’ jurors” to criminal defendants was infringed when Juror 4 expressed 26 27 28 9 16-CV-1176 JLS (MDD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 reasonable doubt after conviction. Irvin v. Dowd, 366 U.S. 717, 722 (1961); see Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998). “If only one juror is unduly biased or prejudiced or improperly influenced, the criminal defendant is denied his Sixth Amendment right to an impartial panel.” United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1997). In the event of a jury misconduct or juror bias allegation, the court should hold a hearing with all interested parties. See Remmer v. United States, 347 U.S. 227, 229–30 (1954); see also Smith v. Phillips, 455 U.S. 209, 216–17 (1982). However, the “nearuniversal and firmly established common-law rule in the United States flatly prohibit[s]” the admission of juror testimony to impeach a verdict except where “an extraneous influence” affected the verdict. Tanner v. United States, 483 U.S. 107, 117 (1983) (citations omitted); see also McDonald v. Pless, 238 U.S. 264, 269 (1915) (generally, jurors may not impeach their own verdict). Both the Federal Rules of Evidence and the California Evidence Code prohibit the use of juror testimony to impeach a verdict when testimony relates to the internal mental process of the verdict. See FED. R. EVID. 606(b); CAL. EVID. CODE § 1150(a). The Court finds that there was no evidence of juror misconduct in this case. Juror 4’s expression of reasonable doubt about specific allegations or charges after the verdict was given concerns her thought process and the jury’s internal deliberations, as opposed to testimony regarding extrinsic influence or juror bias, which is “flatly prohibited” to impeach the jury’s verdict. See Tanner, 483 U.S. at 117. Thus, Juror 4’s statement does not constitute grounds for reversal of the verdict. See Panella v. Marshall, 434 Fed. App’x 603, 605 (9th Cir. 2011); see also Franklin v. McEwen, No. SACV 12-1514-DDP (OP), 2013 U.S. Dist. LEXIS 180861, at *46-50 (C.D. Cal Sept. 26, 2013) (finding a juror’s post-verdict statement apologizing for voting to convict the petitioner and explaining “that ‘most of the jurors wanted to give defendant not guilty’” insufficient to reverse the verdict). 24 25 (R&R 14–15.) 26 Petitioner objects to this conclusion, arguing that without conducting any further 27 inquiry of Juror 4, “it was impossible to determine whether the juror simply had ‘buyer’s 28 remorse,’ or whether her concerns were based on some other factors such as having been 10 16-CV-1176 JLS (MDD) 1 coerced or having been influenced by impermissible juror conduct.” (R&R Objs. 4–5.) In 2 other words, Petitioner argues that this conclusion “fails to recognize the inadequacy of the 3 inquiry conducted and trial counsel’s ineffective representation. It is precisely due to the 4 trial court’s failure to conduct an adequate inquiry with respect to Juror 4, and trial 5 counsel’s ineffective failure to request such an inquiry, that the reasons for Juror 4’s 6 reasonable doubt remains unknown. Thus it is impossible to conclude that juror misconduct 7 did not occur, and in fact the nature of Juror 4’s approach to the trial court suggests that 8 her concerns were indeed grounded in something other than her own state of mind.” (Id. at 9 7–8.) 10 After a review of the record, the Court disagrees with Petitioner, and in particular 11 Petitioner’s suggestion that “it is impossible to conclude that juror misconduct did not 12 occur, and in fact the nature of Juror 4’s approach to the trial court suggests that her 13 concerns were . . . grounded in something other than her own state of mind.” (Id.) To the 14 contrary, the record shows that the court questioned Juror 4 about her concerns and Juror 15 4 responded that her concerns were premised on her understanding of reasonable doubt, 16 not any jury—or other—misconduct. Juror 4 wrote a note to the court stating that she 17 “would like to address the court regarding reasonable doubt.” (ECF No. 1, at 99–100.) 18 Juror 4 asked to meet in private, and the court denied her request. (Id. at 103–104.) When 19 asked what she wanted to address regarding reasonable doubt, Juror 4 said she “wanted to 20 address . . . just the idea of reasonable doubt . . . .” (Id. at 104.) The court asked if she did 21 not understand the definition of reasonable doubt, and she replied “[n]o, no. I understand.” 22 (Id.) Juror 4 simply “wanted to address . . . the reasonable doubt that [she] had on certain 23 counts.” (Id.) 24 Then the following exchange took place: 25 Q [court]: Why did you vote guilty then and find those allegations to be true? Why did you—when I looked you in the eye and polled the jurors individually and asked you, “Were these and are these your verdicts as I’ve just read them,” why didn’t you tell me you had some reasonable doubt? 26 27 28 11 16-CV-1176 JLS (MDD) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A [Juror 4]: Yeah, you know, I—I, ah, should have said it then. Q: Yes, you should have. Why didn’t you? A: I—I didn’t. I went with—we were—had been deliberating and— and, um, I thought that I could just—I thought I had, um, basically overcome the doubt that I had. And it continued to come up in my mind. Q: After the verdicts had been returned? A: Correct. Q: And during the intervening time? A: Correct. Q: Now you thought about it some more? A: Correct. Q: So when you indicated those were and are your verdicts— A: Yes. Q: —they were? A: Yes. Q: They were your verdicts; is that correct? A: Sure. Yes. Q: Well, have you done some independent research then on reasonable doubt? A: No. Just in thinking about it. Q: What? A: In thinking about it, in— Q: Well, you understand the definition of reasonable doubt. A: Yes. Q: Is that a “yes”? A: Yes. Q: We—you heard that repeatedly throughout the trial here in the courtroom and you had that in writing, that definition. A: I did. Q: Intellectually, if you will, you understood what those words mean in the context of proof beyond a reasonable doubt? A: Yes. Q: Okay. Step outside for a minute. Let me talk to counsel. A: Okay. And if I may, too, the purpose of this was—I mean, I thought I would be able to discuss more in detail, ah, about what may be—I don’t know—with you in detail. But if that’s impossible— Q: Well, the concerns you have relate to specific allegations or specific— A: Yes. Q: —charges? A: Yeah. I mean, very specific. It’s totally specific. 12 16-CV-1176 JLS (MDD) 1 2 3 4 Q: Well, that may or may not be appropriate. A: Okay. Q: I don’t think it’s appropriate at this point. A: Okay. THE COURT: Um, all right. Why don’t you step outside just for a moment. 5 6 (Id. at 105–07.) Viewing this exchange as a whole, the Court finds that, contrary to 7 Petitioner’s objections, Juror 4’s concerns appeared to center on her internal struggle with 8 reasonable doubt, particularly after she delivered her verdict. Such testimony is “flatly 9 prohibited” to impeach the jury’s verdict. See Tanner, 483 U.S. at 117. True, as Petitioner 10 notes the court did not conduct a further inquiry into Juror 4’s concerns or specifically ask 11 why she wanted to meet privately with the court. But there is nothing in her exchange with 12 the court that suggests that such a request was to discuss juror—or other—misconduct that 13 might otherwise have supported a further investigation into Juror 4’s concerns. Nor does 14 Petitioner provide any specific citation to the record that would so suggest. And, even then, 15 not all allegations of juror misconduct are admissible. See, e.g., Franklin v. McEwen, 2013 16 WL 6817662, at *18 (C.D. Cal. Dec. 20, 2013) (citing Estrada v. Scribner, 512 F.3d 1227, 17 1237 (9th Cir. 2008) (juror’s declaration that he felt pressured to vote guilty inadmissible 18 evidence of subjective mental process); Panella v. Marshall, 434 Fed. App’x 603, 605 (9th 19 Cir. 2011) (rejecting habeas claim that juror misconduct—foreperson’s non-physical 20 coercion of another juror to change her vote—warranted reversal of conviction where 21 record supported state court’s finding that allegations described no more than permissible 22 “heated discussions that naturally occur at times during jury deliberations”)). 23 In sum, the Court finds that Petitioner’s claims that his right to a unanimous jury was 24 infringed or that there was potential jury misconduct are not potentially meritorious. 25 Consequently, his IAC claim premised on trial counsel’s failure to conduct further 26 investigation into Juror 4 and appellate counsel’s failure to raise the issue on appeal is also 27 not potentially meritorious (i.e., Petitioner suffered no prejudice based on his counsel’s 28 alleged failures in this regard). Thus, the Court concludes that a stay under Rhines is 13 16-CV-1176 JLS (MDD) 1 inappropriate. (Cf. R&R 14–15 (“Because Petitioner’s right to a unanimous jury was not 2 infringed and there was no juror misconduct, any deficienc[ies] in failing to raise these 3 issues on appeal or in state post-conviction applications for collateral relief were not 4 prejudicial under Strickland v. Washington. This is inadequate to show ineffective 5 assistance of counsel for purposes of a Rhines stay.”).) Accordingly, the Court 6 OVERRULES Petitioner’s Objections. 5 7 CONCLUSION 8 For the reasons stated above, the Court (1) OVERRULES Petitioner’s Objections, 9 (2) ADOPTS the relevant portions of Judge Dembin’s R&R, and (3) GRANTS IN PART 10 Respondent’s Motion to Dismiss. Accordingly, the Court DISMISSES WITH 11 PREJUDICE only ground two of the Petition. Petitioner may proceed with ground one of 12 his Petition in this Court. 13 14 IT IS SO ORDERED. Dated: June 6, 2017 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 For this reason the Court does not discuss the third factor of the Rhines analysis. 14 16-CV-1176 JLS (MDD)

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