Opinion
Civil No. 04-0136 BTM (WMC).
January 31, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE RE DENIAL OF PETITION FOR WRIT OF HABEAS CORPUS
Shawn Keith Wilson (hereinafter "Petitioner"), a state prisoner proceeding pro se, has filed a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Petitioner asserts two claims in support of his Petition. First, Petitioner argues the trial court's denial of his post-verdict request to seek juror contact information violated his rights to due process and a fair and impartial jury under the Sixth and Fourteenth Amendments. (Pet. at 6.) Second, Petitioner alleges that juror misconduct during deliberations deprived him of his Fourteenth Amendment due process rights. (Pet. at 6.) Respondent has filed an Answer and has lodged portions of the state court record. Petitioner has filed an "Opposition to the Answer to Petition for Habeas Corpus," which the Court construes as a Traverse.
The Court sua sponte substitutes Jeanne S. Woodford, Director of the California Department of Corrections, for her predecessor Richard A. Rimmer.
This Court, having reviewed the Petition, Answer, Traverse and the documents lodged therewith, finds Petitioner is not entitled to habeas relief and recommends that the Petition for Writ of Habeas Corpus be DENIED.
I. PROCEDURAL HISTORY
On June 2, 1999, a jury found Petitioner guilty of second degree murder while personally using a knife, in violation of California Penal Code §§ 187(a), 12022(b)(1). (Lodgment No. 1 at 1-2, 169.) On June 28, 1999, Petitioner filed a motion to disclose juror contact information and a motion for a new trial based on juror misconduct. Specifically, Petitioner claimed that one of the jurors brought a dictionary definition into the jury room. (Id. at 111-20.) On June 30, 1999 the court denied both motions, and Petitioner was sentenced to 16 years-to-life in state prison. (Id. at 133, 171.)Petitioner appealed his conviction to the California Court of Appeal, Fourth District, Division One. The appellate court found Petitioner had made a prima facie showing of good cause for disclosure of juror information, and on November 21, 2000, vacated the judgment and remanded the case to the trial court with directions to conduct a hearing under California Code of Civil Procedure section 237 regarding the request for juror information. (Lodgment No. 3 at 12-15.) Furthermore, if the trial court ordered juror contact information disclosed, the appellate court further instructed the trial court to set a briefing schedule for a renewed motion for new trial. (Id. at 15.)
All statutory references are to the Code of Civil Procedure unless otherwise specified.
On remand, the trial court mailed letters to the thirteen jurors empaneled at Petitioner's trial. The jurors were informed of the request for their contact information and given the option to appear at the scheduled hearing, respond in writing, or to telephone the court. The letter stated that if no response was made, the court would assume the juror had no objection to the release of their address and phone number. (Lodgment No. 10 at 4-5.) Ten jurors objected to the release of their contact information either in writing or by telephone. One juror agreed in writing to the release of contact information. Two jurors did not respond.
On March 21, 2001, the trial court granted Petitioner's motion for contact information regarding the one assenting and two non-responding jurors, but denied the request as to the others who had opposed disclosure. (Lodgment No. 4 at 41; Lodgment No. 5 at 1-3.) The three jurors were interviewed. Affidavits were obtained from two of the jurors. (Lodgment No. 4 at 31-32.) The third juror was an alternate who did not participate in deliberations. On May 31, 2002, the court denied Petitioner's motion for new trial and reinstated the 16-year prison term. (Lodgment No. 6 at 5.)
On January 17, 2002, Petitioner filed his second appeal with the California Court of Appeal. (Lodgment No. 10 at 1.) Petitioner argued that his constitutional due process and jury trial rights were violated by application of section 237(d), which allowed the ten jurors to refuse to have their contact information revealed. Specifically, Petitioner claimed: (1) it was constitutionally improper for a juror, rather than the court, to decide whether or not contact information should be disclosed for purposes of investigating juror misconduct because it prevented the trial court from balancing the competing interests involved in making the disclosure decision; and (2) the affidavits of the two jurors did not provide the trial court with sufficient information to properly evaluate the underlying juror misconduct claim. (Id. at 6, 10-11.)
On October 31, 2002, the court of appeal affirmed the judgment of the trial court. (Id. at 1.) The court held: (1) a defendant does not have a constitutional right to post verdict access to jurors; (2) the statute is a product of careful balancing by the legislature, and the trial court is not constitutionally required to engage in a balancing process in each case; and (3) the trial court had sufficient information to conclude that the presumption of prejudice arising from the alleged misconduct had been rebutted. (Id. at 10, 12.)
On January 15, 2003, the California Supreme Court denied Petitioner's Petition for Review. (Lodgment No. 12.) On May 19, 2003, the United States Supreme Court denied his petition for Writ of Certiorari. (Lodgment No. 14, Wilson v. California, 538 U.S. 1040 (2003)).
On January 20, 2004, Petitioner filed a Petition for writ of habeas corpus with this Court.
II. FACTUAL HISTORY
The facts that follow are taken from the California Court of Appeal opinion in People v. Wilson, No. D038147, slip op. at 2-3 (Cal Ct. App. Oct. 31, 2002). (Lodgment No. 10.) The Court relies upon these facts pursuant to 28 U.S.C. § 2254(e). See Sumner v. Mata, 449 U.S. 539, 545-47 (1981) (stating that deference is owed to findings of both state and appellate courts); Parke v. Raley, 506 U.S. 20, 35-36 (1992) (stating that questions of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness); Tinsley v. Borg, 895 F.2d 520, 524-26 (9th Cir. 1990) (stating that factual findings of both state trial and state appellate courts are entitled to presumption of correctness on federal habeas corpus review).
On July 30, 1998, after argument with his mother, [Petitioner] went to the residence of his friend, Jeremiah Dominguez, where he showed his friend two knives (including one he had in an ankle sheath), smoked marijuana, and left saying he was going to El Cajon to "run amok." Dominguez understood this to mean [Petitioner] planned to visit friends, party and have fun, but nonetheless Dominguez was concerned. Robert Gibson, the murder victim, was an openly gay male who normally dressed as a man and did not wear makeup, but who sometimes performed as a female impersonator at charity events. Late at night on July 30, Gibson was found stabbed in his vehicle in El Cajon. According to the medical examiner, he had nine stab wounds, 10 or 11 cut wounds, and a couple of injuries that could be either stab or cut wounds. Two of the stab wounds were potentially fatal: a six-inch deep stab to the chest which punctured the major aorta; and a four-inch wound to the throat which cut a jugular vein.
[Petitioner] told the police he was walking in El Cajon when Gibson pulled up in his car, asked for cigarettes, offered him a ride, and offered to perform oral sex on [Petitioner]. [Petitioner], believing Gibson was a woman, accepted the offers. After performing oral sex, Gibson picked up [Petitioner's] ankle sheath knife, started rubbing it against "her" neck and face and asked [Petitioner]: "Is this the part where you kill me? Are you a . . . violent person?" To [Petitioner] the sound of the knife against Gibson's facial hair sounded like a razor, and it was at that point [Petitioner] realized for the first time Gibson was a man. [Petitioner] asked, "You're a man?" Gibson responded that he was a hairdresser by day and a "queen" by night. [Petitioner] "tripped out." Gibson changed his grip on the knife as if to stab [Petitioner], and [Petitioner] grabbed for the knife, cutting his finger. During the ensuing struggle, Gibson was stabbed.
After the arrest and while the deputy sheriff was transferring [Petitioner] from one area of the jail to another, the deputy remarked that a lot of the inmates had been charged with murder and a lot of people were shooting people nowadays and too many people were finding it too easy to pull a trigger. [Petitioner] responded: "I didn't pull a trigger. I stabbed him 29 times."
(Lodgment No. 10, People v. Wilson, No. D038147, slip op. at 2-3).
After the verdict, both defense counsel and the prosecutor spoke to the jurors and learned that one of the jurors had brought a dictionary definition of "amok" into deliberations. Petitioner noted that the Webster's Dictionary definition of "run amok" is: "(1) In a murderous frenzy (2) In a violent or uncontrolled manner (3) Crazed with murderous frenzy (4) Out of control." Based on this information, Petitioner moved for release of jurors' addresses and telephone numbers, and for a new trial because of juror misconduct. (Id. at 3-4.)
The two jurors from whom affidavits were obtained indicated that neither had knowledge of another juror bringing a dictionary into the jury room, or hearing another juror say he had looked up the definition of the term "run amok" in the dictionary. One juror recalled a male juror had introduced the term "run amok" during deliberations, however both jurors agreed that there was no specific conversation among the jury regarding the term. Both jurors indicated that they knew the definition of the term "run amok" prior to entering deliberations. (Lodgment No. 4 at 31-32.)
III. PETITIONER'S CLAIMS
Petitioner claims: (1) the trial court's refusal to release juror contact information for the ten non-consenting jurors pursuant to section 237 violated his due process rights and right to a fair and impartial jury, under the Sixth and Fourteenth Amendments and (2) his Fourteenth Amendment due process rights were violated by juror misconduct during deliberations. (Pet. at 6.)
IV. STANDARD OF REVIEW
Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C.A. § 2254(a) (West 1994) (emphasis added).
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) applies to habeas corpus petitions filed after 1996. See Lindh v. Murphy, 521 U.S. 320 (1997). The current petition was filed on January 20, 2004, and is governed by the AEDPA. As amended by AEDPA, 28 U.S.C. § 2254(d) provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C.A. § 2254(d) (West Supp. 2004) (emphasis added).
In Williams and Andrade, the Supreme Court interpreted § 2254(d)(1) as follows:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.Lockyer v. Andrade, 538 U.S. 63, 73-75 (2003) (quoting Williams v. Taylor, 529 U.S. 362, 412-13, (2000)).
The statutory phrase "clearly established Federal law, as determined by the Supreme Court of the United States" refers to the Supreme Court's holdings, as opposed to the dicta, at the time of the state court decision. Williams, 592 U.S. at 412. However, Ninth Circuit case law may be used as persuasive authority for purposes of determining whether a particular state court decision is an "unreasonable application" of Supreme Court law, and also may help to determine what law is "clearly established." Lajoie v. Thompson, 217 F.3d 663, 669 n. 6 (9th Cir. 2000).
V. DISCUSSION
A. Petitioner is Not Entitled to Habeas Relief on the Basis of His First Claim. 1. Petitioner's request for juror contact information was properly analyzed and denied under state law.
Petitioner claims the trial court's denial of juror contact information pursuant to California Code of Civil Procedure section 237 violated his federal constitutional rights to due process and a fair and impartial jury. (Pet. at 6A-B.) Respondent argues that Petitioner's request is an issue of state law under section 237, and his claim is therefore not cognizable on federal habeas review. (Ans. at 4, 6-9.)
According to the state court's interpretation of section 237, Petitioner was entitled only to the contact information of the three jurors who did not object to disclosure. The court of appeal explained section 237 as follows:
California Code of Civil Procedure section 237 states, in part:
(a) (1) The names of qualified jurors drawn from the qualified juror list for the superior court shall be made available to the public upon request unless the court determines that a compelling interest, as defined in subdivision
(b), requires that this information should be kept confidential or its use limited in whole or in part.
(2) Upon the recording of a jury's verdict in a criminal jury proceeding, the court's record of personal juror identifying information of trial jurors, as defined in Section 194, consisting of names, addresses, and telephone numbers, shall be sealed until further order of the court as provided by this section.
(3) For purposes of this section, "sealed" or "sealing" means extracting or otherwise removing the personal juror identifying information from the court record.
(4) This subdivision applies only to cases in which a verdict was returned on or after January 1, 1996.
[. . .]
(d) After the hearing, the records shall be made available as requested in the petition, unless a former juror's protest to the granting of the petition is sustained. The court shall sustain the protest of the former juror if, in the discretion of the court, the petitioner fails to show good cause, the record establishes the presence of a compelling interest against disclosure as defined in subdivision (b), or the juror is unwilling to be contacted by the petitioner. The court shall set forth reasons and make express findings to support the granting or denying of the petition to disclose. The court may require the person to whom disclosure was made, or his or her agent or employee, to agree not to divulge jurors' identities or identifying information to others; the court may otherwise limit disclosure in any manner it deems appropriate. (emphasis added).
Section 237, subdivision (a)(2) provides that upon the recording of a jury verdict in a criminal proceeding, personal juror identifying information (names, addresses, and telephone numbers) shall be sealed. The subsequent provisions in section 237 set forth the procedure to follow to obtain access to the sealed records. That is, any person may petition the court for access to these records, and the court must set the matter for hearing. . . . If a hearing is set, the court must provide notice to each affected juror, and the jurors may appear in person, in writing, by telephone, or by counsel to protest the granting of the petition. (§ 237, subd.(c).) After the hearing, the records shall be made available, unless a juror's protest is sustained. (§ 237, subd. (d).) `The court shall sustain the protest of the former juror if, in the discretion of the court, the petitioner fails to show good cause, the record establishes the presence of a compelling interest against disclosure . . ., or the juror is unwilling to be contacted by the petitioner.' (§ 237, subd. (d), italics added).
(Lodgment No. 10, People v. Wilson, No. D038147, slip op. at 6-7) (emphasis added).
The above passage summarizes the state court's interpretation and application of state law. Therefore, federal habeas relief is not available on Petitioner's first claim since federal habeas relief is limited to issues which raise a question of federal law. See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (federal habeas corpus relief does not lie for errors of state law, and federal courts may not reexamine state court determinations on state law issues).
2. The state court's denial of Petitioner's request for juror information was neither contrary to nor an unreasonable application of clearly established federal law. a) State Court Ruling Was Not Contrary To Clearly Established Federal Law.
Petitioner argues this claim raises a cognizable federal question. The Court will address this issue as though it presented a federal question, and will address the merits of Petitioner's allegation. Estelle, 502 U.S. at 68. Petitioner claims that section 237 is unconstitutional in general and as applied in his case. (Pet. at 6A.)
In particular, Petitioner points to section 237(d) which requires the court to withhold identifying information of any juror who protests the disclosure. Petitioner argues that section 237(d) improperly allows jurors, rather than the court, to decide whether contact information will be disclosed. He claims this prevents the court from balancing the juror's privacy interests against the defendant's constitutional right to an untainted jury verdict. (Pet. at 6A.) Petitioner argues the specific application of section 237 in his case prevented his counsel from fully investigating the alleged jury misconduct, which in turn deprived him of his constitutional rights under the Sixth and Fourteenth Amendments. (Pet. at 6B.)
Petitioner presented this claim to the state supreme court in the petition for review on direct appeal. (Lodgment No. 11.) Without comment, the Court denied the petition. (Lodgment No. 12.) Because the California Supreme Court did not articulate its rationale for denying the claim, this Court applies the following rebuttable presumption: "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst, 501 U.S. at 797.
The state appellate court held that while the Petitioner "has a constitutional right to a trial by impartial jurors, he has no constitutional postverdict right to force jurors to talk to him against their will, and it follows he has no constitutional right to disclosure of their identifying information for purposes of an interview." (Lodgment No. 10, People v. Wilson, No. D038147, slip op. at 8.) The court noted that jurors have an absolute right to refuse to discuss their deliberations or verdict, and that a defendant is not guaranteed post-trial access to jurors, nor the right to question them about the verdict. (Id. at 8, citing section 206(a); People v. Cox, 53 Cal. 3d 618, 698-99 (1991); and Townsel v. Superior Court, 20 Cal.4th 1084, 1092 (1999)). The court concluded that, although section 237 creates a "posttrial procedural right under state law," it does not "invoke a constitutional right." (Lodgment No. 10 at 9.)
California Code of Civil Procedure section 206 states, in part:
(a) Prior to discharging the jury from the case, the judge in a criminal action shall inform the jurors that they have an absolute right to discuss or not to discuss the deliberation or verdict with anyone. The judge shall also inform the jurors of the provisions set forth in subdivisions (b), (d), and (e).
[. . .]
(g) Pursuant to Section 237, a defendant or defendant's counsel may, following the recording of a jury's verdict in a criminal proceeding, petition the court for access to personal juror identifying information within the court's records necessary for the defendant to communicate with jurors for the purpose of developing a motion for new trial or any other lawful purpose. This information consists of juror's names, addresses, and telephone numbers. The court shall consider all requests for personal juror identifying information pursuant to Section 237.
(emphasis added)
The Court of Appeal also held section 237 was constitutionally acceptable. The court found that, in enacting the statute, the Legislature had appropriately balanced the policy concerns of maintaining a public system fostering juror participation, protecting juror's privacy rights and preserving a defendant's right to a fair trial. ( Id. at 9-10.) The court reasoned that, since the statute is "the product of careful balancing, and because access to jurors is not a constitutional right, there is no constitutional mandate that a trial court engage in a balancing process in each particular case." ( Id. at 10.)
Further, the state appellate court found unavailing Petitioner's claim that his state constitutional rights were infringed because his counsel was unable to fully investigate the alleged juror misconduct. Petitioner alleged that his rights were violated when his counsel could not directly contact the jurors to elicit their consent for an interview. The court stated: "Because jurors can refuse to talk even if contacted, the only real difference created by the 1995 amendments is that it is the court, rather than the parties, that uses the identifying information . . . to contact the jurors for permission. Because access to juror information is not a constitutional right, there is no constitutional deprivation arising from this change." ( Id. at 10.)
The appellate court noted that:
"Before the 1995 amendments, section 237 only required the trial court to seal the juror information in the court's record if there was a compelling interest, and the court was required to grant a request for disclosure absent a finding of continuing risk. (See Historical and Statutory Notes, 13 West's Ann. Code Civ. Proc. (2002 supp.) foll. § 237, p. 263.)."
(Lodgment No. 10 at 7.)
Petitioner asserts that the appellate court's decision is contrary to clearly established federal law. (Pet. at 6A.). In his second appeal, Petitioner cited Press-Enterprise Co. v. Superior Court, 464 U.S. 501 (1984) for the proposition that the privacy rights of jurors are not absolute and must yield to other constitutional guarantees, such as a criminal defendant's interest in a fair trial. (Lodgment No. 7 at 15-16.) In Press-Enterprise the Court addressed whether the guarantees of open public proceedings in criminal trials included the voir dire examination of potential jurors. Id. at 503. The trial court had denied the media's request that voir dire be open to the public and press, and subsequently denied a motion to release to the media a complete transcript of the voir dire proceedings. The trial court based its decision, in part, on juror privacy. Id. at 503-04, 510. The Supreme Court held that the trial court could not constitutionally close the voir dire without first considering alternatives to closure. Id. at 511, 513. The opinion did not specifically address juror privacy rights. See Id. at 514 ("the Court does not decide, nor does this case require it to address, the asserted "right to privacy of the prospective jurors.") (Blackmun, J., concurring). Nor did the Court address postverdict access to jurors. The Court was only concerned with voir dire proceedings. Furthermore, the Court's holding was based on the media's First Amendment rights, not the Sixth Amendment rights of criminal defendants. Id. at 516 ("The constitutional protection for the right of access that the Court upholds today is found in the First Amendment") (Stevens, J., concurring). Therefore, the Court of Appeal's decision is not contrary to the holding in Press-Enterprise.
Petitioner does not cite, nor has this Court discovered, any other controlling United States Supreme Court precedent granting a criminal defendant a postverdict Contistitutional right to juror information. There does not appear to be a clearly established constitutional rule, giving Petitioner the right to postverdict jury contact information. Thus, the federal court should defer to the state courts' reasonable interpretation of the constitution. Mitchell v. Esparza, 540 U.S. at 17 ("A federal court may not overrule a state court for simply holding a view different from its own, when the precedent from this Court is, at best, ambiguous."). See also Penry v. Johnson, 532 U.S. 782, 795 (2001) (holding that because there was no squarely controlling Supreme Court authority, it was not unreasonable for the state court to conclude that the defendant was not entitled to relief). The Court of Appeal found that section 237 was constitutional in general and as it applied to the Petitioner. This decision is within the province of the state court. Therefore, this Court finds the court of appeal's decision is not contrary to clearly established federal law.
b) State court ruling was not an unreasonable application of clearly established federal law
Neither is the state court's decision an unreasonable application of clearly established federal law. A state court decision involves an unreasonable application of federal law if the court "either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams v. Taylor, 529 U.S. 362, 407 (2000) (emphasis added). To be unreasonable, the state court's decision "must have been more than incorrect or erroneous." Wiggins v. Smith, 539 U.S. 510, 520 (2003). At most, Supreme Court precedent may require that the privacy interests of jurors be balanced against Petitioner's rights to ensure he receives a fair trial. See Clark v. United States, 289 U.S. 1, 13-14 (1933) (discussing jury privilege during trial and deliberations in a contempt proceeding against a former juror, and noting that "the recognition of a privilege does not mean that it is without considerations or exceptions" and that the court should balance competing social policies). Here, the appellate court found that the legislature, in amending the statute, appropriately balanced the concerns of the criminal defendant's right to a fair trial and privacy concerns of the jurors. (Lodgment No. 10, People v. Wilson, No. D038147, slip op. at 9-10). To the extent the appellate court conducted a balancing test as required by Supreme Court precedent, the decision of the appellate court is not an unreasonable application of federal law.
Petitioner also alleges that the state court rulings are in error because they failed to refer to the United States Supreme Court decisions cited in Petitioner's briefs. This claim is unfounded. A state court need not cite Supreme Court precedent when resolving a habeas corpus claim. Early v. Packer, 537 U.S. 3, 8 (2002). "[S]o long as neither the reasoning nor the result of the state-court decision contradicts [Supreme Court precedent,]" the state court decision will not be contrary to clearly established federal law. Id; see also Mitchell v. Esparza, 540 U.S. 12, 16 (2003) ("A state court's decision is not `contrary to . . . clearly established Federal law' simply because the court did not cite our opinions.").
Since, the holding of the appellate court is neither contrary to, nor an unreasonable application of, clearly established federal law as determined by the Supreme Court, habeas relief is unwarranted. Therefore, the Court recommends that the Petition be DENIED with regard to Petitioner's first claim.
B. Petitioner is Not Entitled to Habeas Relief on the Basis of His Second Claim.
Petitioner also asserts that a juror's act of introducing a dictionary definition of the term "run amok" into deliberations amounted to jury misconduct. Petitioner claims that such jury misconduct amounted to a violation of his federal due process rights. He argues that the affidavits of only two jurors were insufficient for the state courts to have made a proper determination on this issue. (Pet. at 6B.) Petitioner also argues that the state courts were wrong in holding that the presumption of prejudice resulting from juror misconduct had been properly rebutted.
Respondent argues: 1) the state courts properly rejected Petitioner's claims; 2) Petitioner cannot demonstrate any prejudice because there was no substantial or injurious effect or influence on the verdict, and; 3) if this Court were to adopt Petitioner's argument it would create a prohibited new rule of constitutional criminal procedure under Teague v. Lane, 489 U.S. 288 (1989). (Ans. at 9-15.)
Under Teague, new rules of constitutional criminal procedure cannot be applied retroactively in cases decided before the rule is announced unless two very narrow exceptions apply. 489 U.S. at 310; see also Horn v. Banks, 536 U.S. 266 (2002) (holding that the Teague rule applies under the AEDPA); Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th Cir. 2003).
"Under the Sixth Amendment, [a petitioner] has a federal constitutional right to an impartial jury, the right to confront those who testify against him, and the right to conduct cross-examination." Mancuso v. Olivarez, 292 F.3d 939, 949 (9th Cir. 2003). These rights are implicated when a jury is "exposed to prejudicial extrinsic information . . . during jury deliberation." Id. A defendant therefore has a right to an impartial jury where jurors consider only the evidence which is presented to them in open court. Turner v. Louisiana, 379 U.S. 466, 472-73 (1965); Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986). If extrinsic information is introduced into a jury's deliberations, habeas relief is warranted if "the extrinsic information had a `substantial and injurious effect or influence in determining the jury's verdict.'" Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000) (quoting Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)). Habeas relief can only be granted if this Court determines that the appellate court's decision on the issue is contrary to, or an unreasonable application of, clearly established federal law. 28 U.S.C. § 2254(d)(1).
Respondent urges that there is no clearly established Supreme Court authority which indicates Petitioner is entitled to relief. The United States Supreme Court has granted relief under the Constitution upon claims of jury tampering, but not regarding extrinsic evidence. See DeLisle v. Rivers, 161 F.3d 370, 387-88 (6th Cir. 1998). Only twice has the Supreme Court held that juror misconduct violated the federal due process clause. See La Fave, Criminal Procedure, (2nd Ed. 1999) Jury Proceedings, § 24.9(f), p. 605. In Turner v. Louisiana, 379 U.S. 466 (1965) the prosecution's key witnesses (two sheriffs) had mingled with the jury during the trial and were in charge of the sequestered jurors until they reached a verdict. The Supreme Court reversed the conviction finding "extreme prejudice inherent in this continual association throughout the trial." Id. at 473-74. In Parker v. Gladden, 385 U.S. 363 (1966), a bailiff who was in charge of sequestered jurors commented during their deliberations that "Oh that wicked fellow (petitioner), he is guilty," and "If there is anything wrong (in finding petitioner guilty), the Supreme Court will correct it." Id. at 363-64. The Court held the bailiff's conduct involved such a high probability of prejudice that the conviction was lacking in due process. Id. at 365. As noted by Respondent, other Supreme Court cases regarding jury deliberations were not decided on constitutional grounds. Rather, the Court relied upon its exercise of supervisory powers over the federal courts. Early v. Packer, 537 U.S. 3, 10 (2002) (" Jenkins [ Jenkins v. United States, 380 U.S. 445, 85 (1978)] and Gypsum Co. [ United States v. United States Gypsum Co., 438 U.S. 422 (1978)] are off the table as far as § 2254(d) is concerned, and the Ninth Circuit erred by relying on those nonconstitutional decisions.) Therefore, the state court's decision is neither contrary to, nor an unreasonable application of, Supreme Court precedent.
Even assuming the appellate court improperly applied Supreme Court authority in rejecting Petitioner's claims, he is not entitled to relief because any possible error did not have a (1) substantial, (2) injurious effect or (3) influence upon the verdict. In addressing this aspect of Petitioner's claim, the appellate court wrote:
Juror misconduct raises a presumption of prejudice that may be rebutted by proof no prejudice actually resulted. A judgment must be reversed or vacated whenever the court finds a substantial likelihood that the vote of one or more jurors was influenced by exposure to a prejudicial matter that was not part of the trial record. If the court concluded it is substantially likely the outside information affected the verdict, or that a juror was actually biased, the verdict must be set aside.
(Lodgment No. 10, People v. Wilson, No. D038147, slip op. at 11) (citations omitted).
The appellate court concluded that, although the jury may have received the dictionary definition, the presumption of prejudice had been sufficiently rebutted. ( Id. at 12.) This finding is consistent with federal law. A jury's consideration of extrinsic evidence implicates a defendant's right to an impartial jury. Mancuso, 292 F.3d at 949. However, a jury's consideration of extrinsic evidence is subject to a harmless error analysis. See Sassounian, 230 F.3d at 1108 (on habeas review, a jury's consideration of extrinsic evidence is subject to harmless error review under Brecht v. Abrahamson, 507 U.S. 619 (1993)); see also United States v. Bagley, 641 F.2d 1235, 1240-41 (9th Cir. 1981) (on direct review, a jury's consideration of extrinsic evidence is subject to harmless error review). Because "neither the reasoning nor the result of the state-court decision contradicts" Supreme Court precedent, the state court's opinion is not "contrary to" clearly established federal law. See Early v. Packer, 537 U.S. at 8.
Also, the Court of Appeal's opinion is an objectively reasonable application of federal law. In concluding that the Petitioner had not been prejudiced by the dictionary definition, the appellate court wrote:
The two juror affidavits indicate no reference was made to a dictionary definition of "run amok" during deliberations. The two affidavits were essentially consistent and did not point to a material disputed issue of fact. Assuming a juror did bring a dictionary definition into the jury room during deliberations, the affidavits suggest the definition was at most mentioned in passing and was not the subject of any significant jury discussion. As such, the trial court had sufficient information to conclude the impact of any reference to a dictionary definition was minimal, and we agree with this determination.
(Lodgment No. 10 at 11-12) (footnote omitted).
In the Ninth Circuit, courts look to the following factors to assess whether a piece of extrinsic evidence has prejudiced the defendant:
(1) whether the material was actually received, and if so, how; (2) the length of time it was available to the jury; (3) the extent to which the juror discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so at that point in the deliberation; and (5) any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict.Sassounian, 230 F.3d at 1109.
Notwithstanding the factors set out in Sassounian, Id., other factors may be considered which "might nonetheless suggest that the potential prejudice of the extrinsic information was diminished in a particular case." Id. These factors include:
(1) whether the prejudicial statement was ambiguously phrased; (2) whether the extraneous information was otherwise admissible or merely cumulative of other evidence adduced at trial; (3) whether a curative instruction was given or some other step taken to ameliorate the prejudice; (4) the trial context; (5) whether the statement was insufficiently prejudicial given the issues and evidence in the case.Id.
Here, the affidavits submitted by the jurors denied any knowledge that a dictionary definition had been introduced into the deliberation proceedings, or that any juror had told the collective group that he or she had looked up the definition of the term "run amok" in the dictionary. (Lodgment No. 4 at 31-32; No. 10 at 5.) Assuming the dictionary definition was brought into deliberations, there is no indication that any lengthy discussion involving the definition of "run amok" occurred. Indeed, both juror affidavits state that they do not believe there was any specific conversation regarding the term "run amok" among the jurors, and at most a "glib remark" about the term was made. (Lodgment No. 4 at 31-32; No. 10 at 5.) Furthermore, both affiants indicated they already knew the meaning of the term before entering the deliberations. The affidavits are consistent with each other, and do not dispute the relevant facts.
In addition, since the same information (i.e., the dictionary definition of the term "run amok") could have potentially been introduced into evidence by the trial court or counsel, Petitioner was not prejudiced. See Cal. Evid. Code §§ 451(e), 452(h); cf. Fed.R.Evid. 201(b). Thus, it was not unreasonable for the appellate court to determine there was no prejudice from the dictionary definition of "run amok" had it been brought into the jury room.
Finally, the appellate court's opinion does not rest on "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2) (West Supp. 2004). In order for Petitioner to satisfy this provision, he must demonstrate that the factual findings upon which the state court's adjudication rests (assuming it rests on a factual determination) is objectively unreasonable. Miller-EL v. Cockrell, 537 U.S. 322, 340 (2003). Here, as discussed above, the state court made factual findings that any consultation with a dictionary was brief and was not likely to have impacted jurors in light of the other compelling evidence against the Petitioner. (Lodgment No. 10 at 6, 12; No. 4 at 43, 10-18.) The appellate court's factual determinations are not objectively unreasonable. Accordingly, habeas relief is unwarranted. Therefore, it is recommended that Petitioner's second claim be DENIED.
VI. CONCLUSION AND RECOMMENDATION
For the reasons stated herein, the state appellate court arrived at a decision with regard to Petitioner's alleged constitutional claims that was neither contrary to, nor involved an unreasonable application of, clearly established federal law. Therefore, the Court RECOMMENDS that Petitioner's Petition for Writ of Habeas Corpus be DENIED.This report and recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provision of 28 U.S.C. § 636(b)(1) and Local Civl Rule HC.2 of the United States District Court for the Southern District of California.
IT IS ORDERED that no later than February 22, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation."
IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later than March 8, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).