ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS

YVONNE GONZALEZ ROGERS, District Judge.

INTRODUCTION

Now before the Court is a habeas corpus petition filed by Petitioner Robert Dean Mays pursuant to 28 U.S.C. section 2254. (Dkt. No. 1.) Respondent Anthony Hedgpeth has filed an answer and a memorandum of points and authorities in support thereof (Dkt. No. 6); Petitioner has filed a traverse (Dkt. No. 7).

For the reasons set forth below, the petition for such relief is DENIED.

BACKGROUND

Petitioner was originally charged by amended information with first degree murder (§ 187, subd. (a); count 1) and conspiracy (§ 182, sub. (a)(1); count 2). The information further alleged that, in the commission of the offense in count 1, as a felony enhancement, Petitioner personally and intentionally discharged a handgun (§ 12022.53).

Petitioner originally pleaded guilty to the charges against him and admitted that he had discharged a handgun. Petitioner then moved to withdraw his guilty plea. The trial court denied that motion and sentenced petitioner to an indeterminate sentence of 50 years to life. Petitioner appealed, and the California Court of Appeal reversed the conviction and remanded to the trial court with instructions to allow Petitioner to withdraw his guilty plea. People v. Mays, 2007 WL 2774702.

After Petitioner withdrew his guilty plea, his trial began on March 2, 2009. The case went to the jury on March 26, 2009. After the second day of jury deliberation the court excused one of the jurors. With a new juror in place, deliberations continued. After three more days of deliberation the jury returned a verdict finding Petitioner guilty of first degree murder and finding that he discharged a firearm in the commission of that crime. On June 26, 2009, the court sentenced Petitioner to two consecutive sentences of 25 year to life in prison, for a total sentence of 50 years to life.

On January 5, 2011, the California Court of Appeal affirmed Petitioner's conviction. People v. Mays, No. H034465, 2011 WL 18743 (Cal. Ct. App. Jan. 5, 2011). Petitioner filed a petition for review with the California Supreme Court, which it denied on April 13, 2011.

Petitioner filed the instant petition for habeas corpus on November 15, 2011. That Petition is now fully briefed and is ready for review on the merits.

UNDERLYING FACTS

The Court adopts as its account of the facts the summary set forth in the last reasoned opinion in this matter, the California Court of Appeal's decision on direct review of Petitioner's conviction. People v. Mays, H034465, 2011 WL 18743 (Cal. Ct. App. Jan. 5, 2011).1 Those facts are as follows:

People v. Mays, 2011 WL 18743, at *1-7.

STANDARD OF REVIEW

Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), this Court may entertain a petition for 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. § 2254(a). The petition may not be granted with respect to any claim adjudicated on the merits in state court unless the state court's 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. § 2254(d).

"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 [the United States Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). "Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable." Id. at 409.

Further, even if a constitutional error is found, habeas relief may only be granted if the error had a "substantial and injurious effect or influence in determining the jury's verdict." Penry v. Johnson, 532 U.S. 782, 784 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).

DISCUSSION

As grounds for federal habeas relief, Petitioner advances two claims: (1) that the state trial court violated Petitioner's Fifth and Fourteenth Amendment rights when it admitted his involuntary confession; and (2) that the state trial court violated Petitioner's Sixth Amendment right to a fair trial and Fourteenth Amendment due process rights when it refused to declare a mistrial after one juror told other jurors during the course of deliberations that Petitioner had previously been convicted of the same crime and sentenced to 50 years to life.

The Court considers each claim in turn.

I. ADMISSION OF PETITIONER'S CONFESSION

A. Background

Petitioner argues that the court of appeal erred when it upheld the trial court's decision to admit his confession into evidence. Specifically, Petitioner claims his confession was involuntary, and its admission violated his Fifth Amendment right against self-incrimination and his Fourteenth Amendment due process rights.

The Court of Appeal considered Petitioner's arguments and disposed of them as follows:

People v. Mays, 2011 WL 18743, at *11-17.

B. Legal Standard

Admission of a defendant's involuntary confession violates both the Fifth Amendment right against self-incrimination and the Fourteenth Amendment right to due process of law. See Dickerson v. United States, 530 U.S. 428, 433 (2000). Voluntariness of a confession is not a factual issue entitled to a presumption of correctness under 28 U.S.C. § 2254(d), but is a legal question meriting independent consideration in a federal habeas corpus proceeding. See Miller v. Fenton, 474 U.S. 104, 115-16 (1985); Mincey v. Arizona, 437 U.S. 385, 398 (1978) (federal court reviewing admissibility of defendant's confession is not bound by state court's finding of voluntariness, but has a "duty to make an independent evaluation of the record.") That said, a state court's subsidiary factual conclusions are entitled the presumption of correctness. See Rupe v. Wood, 93 F.3d 1434, 1444 (9th Cir.1996). Not only must federal habeas courts accord credibility determinations deference, factual determinations such as credibility are "presumed to be correct." See 28 U.S.C. § 2254(e)(1); Knaubert v. Goldsmith, 791 F.2d 722, 727 (9th Cir.1986).

Voluntariness is to be determined in light of the totality of the circumstances. See Miller v. Fenton, 474 U.S. 104, 112 (1985). The factors to be considered include the degree of police coercion; the length, location and continuity of the interrogation; and the defendant's maturity, education, physical condition, mental health, and age. Withrow v. Williams, 507 U.S. 680, 693-94 (1993). The voluntariness inquiry is not limited to police conduct that is inherently coercive, but also applies to interrogation techniques where, under the particular circumstances of the case, the confession was likely not the result of free will. See United States v. Preston, 751 F.3d 1008, 1016 (9th Cir. 2014) (citing Miller, 474 U.S. at 110). The voluntariness determination therefore depends on "a weighing of the circumstances of pressure against the power of resistance of the person confessing." Id. (internal citations omitted).

Absent threats or promises, deception alone will not render confession involuntary. Ortiz v. Uribe, 671 F.3d 863, 869 (9th Cir. 2011). Lying about or exaggerating the amount of evidence against a criminal defendant does not create deception that rises to the level of a constitutional violation. See Frazier v. Cupp, 394 U.S. 731, 739 (1969). In cases involving psychological coercion, "the pivotal question. . . is whether[, in light of the totality of the circumstances,] the defendant's will was overborne when the defendant confessed." Ortiz, 671 F. 3d at 869 (citing United States v. Miller, 984 F.2d 1028, 1031 (9th Cir.1993)).

C. Discussion

Petitioner argues that his confession was involuntary, and that the appellate court's affirmance of its admission at trial deprived him of his Fifth and Fourteenth Amendment rights. He argues that the confession was obtained by false promises of leniency, improper threats to seek the death penalty, exaggeration of the evidence, plus other characteristics of the interrogation which made it coercive and involuntary. The Court finds that, under the totality of the circumstances as determined by the trial court, Petitioner has not demonstrated that his will was overborne or his confession coerced.

1. Promises of Leniency

The totality of the circumstances test for the voluntariness of a confession focuses first on the degree of coercive police activity. See Withrow, 507 U.S. at 693-94; see also Colorado v. Connelly, 479 U.S. 157, 167 (1986) (coercive police activity is a necessary predicate to the finding that a confession is not "voluntary" within the meaning of the Due Process Clause of the Fourteenth Amendment"). As the appellate court affirmed, Petitioner has not shown that the tactics the investigators used here were so coercive as to render his confession involuntary.

As a preliminary matter, there are no allegations that the interrogators employed physical violence. Rather, Petitioner argues that the interrogators promised him leniency if he confessed. Petitioner testified that one of the interrogating officers told him "[i]f you tell me everything I will go to the DA and fight for you." (Dkt. No. 1 at 7; 2 Clerk's Transcript ["CT"] at 272:16.) The context surrounding that statement demonstrates that it is not evidence of coercion. Just after the interrogator made that statement, Petitioner asked the interrogator what information he wanted. (2 CT at 272:17.) The interrogator told Petitioner that he wanted the "whole truth," and that he did not want Petitioner to tell him "somethin' [he] didn't do." (Id. at 272:18-24.) Those statements demonstrate that, while the interrogators promised to advocate for Petitioner, they made it clear to Petitioner that they only wanted the truth, and did not promise that Petitioner would receive a more lenient sentence if he confessed. Under those circumstances, the interrogators' promise that they would "fight for" Petitioner did not constitute sufficient coercion such as would render the confession involuntary. See Connelly, 479 U.S. at 167. The Court agrees with the court of appeal's conclusion that no promise of leniency was made in exchange for the confession. People v. Mays, 2011 WL 18743, at *16.

2. Threats of Death Penalty

Petitioner next argues that his confession was coerced because his interrogators threatened him with the death penalty. The police interrogators asked him, "[d]o you see yourself burning by not saying anything?" (2 CT 288:22-23.) The interrogators also made repeated comparisons to the then-recent Scott Peterson case, in which Peterson had received the death penalty. (2 CT at 142:7-143:20, 258:8-13.) The interrogators told Petitioner that the evidence against him was better than the evidence in the Scott Peterson case, but they did not say that because they had better evidence than in the Scott Peterson case it was certain or even more likely that Petitioner would receive the death penalty if he did not confess. In fact, they refused to discuss potential punishments. (2 CT at 281:9-11, 294:19-20.)

Furthermore, Petitioner cites no Supreme Court authority to suggest his interrogators' statements (i.e. about a recent death penalty conviction in a different murder case, or "see[ing] yourself burning" by not confessing) rendered his confession involuntary. Thus, Petitioner has not shown that the appellate court's ruling was contrary to or an unreasonable application of clearly established federal law.

3. Exaggerating Evidence

Petitioner also argues that his Fifth and Fourteenth Amendment rights were violated when the interrogators exaggerated the evidence against him. Again, deception by the interrogators will not render a confession involuntary where it is not accompanied by threats or promises. See Ortiz, 671 F. 3d at 869. Lying about or exaggerating the amount of evidence against a criminal defendant does not create deception that rises to the level of a constitutional violation. See Frazier, 394 U.S. at 739; Miller, 984 F.2d at 1031 (deception does not render confession involuntary, citing Frazier). Because Petitioner has not shown that his confession was the result of threats or promises, he cannot show that the deception employed by the investigators was sufficient to render his confession involuntary.

4. Misstating the Difference in Penalties Between Different Degrees of Murder

Petitioner further argues that his interrogators misstated the differences in penalties as between a killing in the course of a burglary versus a killing after lying in wait for the victim, causing him to give a false confession. Petitioner cites no Supreme Court precedent for his argument that the interrogators' misleading statements about the difference in penalties between a killing during a burglary and a killing characterized by lying in wait gave rise to a Constitutional violation. Further, the Court is not aware of any such precedent.

Moreover, in light of his interrogators' repeated directives to tell only the truth, (2 CT at 272:18-24, 292:16), the Court concludes that any deception concerning the relative penalties for a killing under various circumstances did not "overbear" Petitioner's will. Cf. Ortiz, 671 F. 3d at 869.

5. Length of Interrogation and Physical Condition of Defendant

Petitioner contends that additional factors, as set forth in Withrow, supra, 507 U.S. at 693-94, affected the voluntariness of his confession, including the length of the interrogation, and his physical condition.

With respect to the length of the interrogation, the court of appeal found that Petitioner was questioned for approximately five hours, and that the total length of Petitioner's interrogation was seven hours. People v. Mays, 2011 WL 18743, at *15. Petitioner does not cite to any Supreme Court authority holding that the length of an interrogation itself may render a confession involuntary. The Ninth Circuit has held that an interrogation of eight hours may be permissible and non-coercive under certain circumstances. See Clark v. Murphy, 331 F.3d 1062, 1073 (9th Cir. 2003) (internal citations omitted, overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63 (2003)).

Petitioner cites Spano v. New York for the proposition that an eight hour interrogation fatigues the suspect to the point of coercion. 360 U.S. 315, 322 (1959) ("In such circumstances slowly mounting fatigue does, and is calculated to, play its part."). However, Spano is distinguishable from the facts here. In Spano, questioning continued despite the defendant's refusal to answer on the advice of an attorney and his repeated requests to call his attorney. Id. Here, Petitioner made no such refusal or request, but instead maintained his denial of any involvement in the victim's death until he ultimately confessed. Further, unlike the defendant in Spano, who was questioned for eight hours straight, the duration of Petitioner's actual questioning was five hours, and he was given several breaks throughout the interrogation. Id.; People v. Mays, 2011 WL 18743, at *15. In light of those differences and subsequent case law holding that interrogations longer than Petitioner's are permissible, Spano does not control.

Petitioner argues that his statements during the interrogation that he was "gonna be sick" and that he could not "even think straight right now" show that his physical well-being during the interrogation was compromised and support a conclusion that his confession was involuntary. (Dkt. No. 1 at 39; 2 CT at 372:18-23.) However, as the court of appeal determined, Petitioner made these statements after he had already confessed. People v. Mays, 2011 WL 18743, at *15. In that light, they are most logically read as Petitioner's reaction to the gravity and consequences of the confession he had just made, and not as references to any physical ailment that might have affected his ability to exercise his free will.

An analysis of the remaining factors set forth in Withrow supports the finding that Petitioner's confession was not involuntary. Petitioner was afforded several breaks, and was provided food and beverages. People v. Mays, 2011 WL 18743, at *15. Petitioner was an adult who, at the time of the interrogation, had previously had experience with the criminal justice system. Id. He appeared comfortable with his interrogators, and he referred to them by their first names. Id. Though he was known to have used methamphetamine on prior occasions, the officers saw no signs of him being under the influence at the time. Id. He was not physically small, weak, or disabled and did not seem to be intimidated by the officers. Id. These subsidiary findings of fact reached by the trial court and affirmed by the court of appeal are, by law, entitled to a presumption of correctness on habeas review. See 28 U.S.C. § 2254(e)(1); Knaubert, 791 F.2d at 727. The Court can find no justification for finding them invalid or ill-considered. Ultimately, they support a determination that Petitioner's confession was not coerced.

6. Conclusion

In sum, and taking into account the totality of the circumstances, the Court finds that Petitioner's will was not "overborne," that his confession was not coerced, and his decision to confess was voluntary. See Ortiz, 671 F. 3d at 869. Admission of the confession did not violate Petitioner's Fifth and Fourteenth Amendment rights. Accordingly, habeas relief on this claim is DENIED.2

II. JUROR MISCONDUCT

A. BACKGROUND

Petitioner contends that the trial court erred when it allowed jury deliberation to proceed after Juror No. 8's misconduct of imparting information during the deliberation to the effect that Petitioner had already been convicted of the crime about which they were deliberating and had been given a sentence of 50 years to life. (Dkt. No. 1 at 15.) Taking all the circumstances into consideration, the Court finds no prejudicial error in the trial court's decision and the appellate court's affirmance.

Once the trial court became aware of the juror's statements it questioned each of the jurors about whether they had heard what the juror had said. (See, e.g., 7 Reporter's Transcript ["RT"] at 1183:15-25.) Seven of the other eleven jurors reported that they had heard Juror No. 8's statements about Petitioner's previous conviction for the same crime. (See, e.g., id. at 1183:25-1184:20.) Each of the seven jurors who heard the statement told the court that they could set aside what Juror No. 8 had said and decide the case based on the evidence presented in court. (See, e.g., id. at 1185:3-1186:5.) Satisfied that the jurors could remain impartial, the court excused Juror No. 8 and denied Petitioner's motion for a mistrial.3 (7 RT at 1198:17-21, 1199:8-11.) The state appellate court affirmed the decision, reasoning as follows:

People v. Mays, 2011 WL 18743, at *7-11.

B. Legal Standard

Criminal defendants have a constitutional right under the Fourteenth and Sixth Amendments to a trial by fair, impartial jurors. Duncan v. Louisiana, 391 U.S. 145, 148-49 (1968); Irvin v. Dowd, 366 U.S. 717, 721-22 (1961). Impartiality of jurors is a question of fact, and, as such, is presumed to be correct unless rebutted by the habeas petitioner. 28 U.S.C. § 2254(e)(1); Skilling v. United States, 561 U.S. 358, 386 (2010) ("Reviewing courts are properly resistant to second-guessing the trial judge's estimation of a juror's impartiality, for that judge's appraisal is ordinarily influenced by a host of factors impossible to capture fully in the record."); Patton v. Yount, 467 U.S. 1025, 1038 (1984) (trial court's conclusion that a juror was not biased is a finding of fact entitled to "special deference").

Constitutionally impermissible prejudice is strongly presumed whenever members of the jury receive extrinsic information about the case in which they must return a verdict. Xiong v. Felker, 681 F.3d 1067, 1076 (9th Cir. 2012) (citing Remmer v. United States, 347 U.S. 227, 228 (1954)), cert. denied, 133 S.Ct. 989 (2013). Juror bias can be inferred where a juror is "apprised of such prejudicial information about the defendant that the court deems it highly unlikely that he can exercise independent judgment even if the juror states he will." Estrada v. Scribner, 512 F.3d 1227, 1240 (citing Coughlin v. Tailhook Ass'n, 112 F.3d 1052, 1062 (9th Cir. 1997)). However, due process does not require a new trial every time a juror has been placed in a potentially compromising situation. Smith v. Phillips, 455 U.S. 209, 217 (1982). Instead, the presumption of prejudice is rebuttable, and the burden rests upon the government to show that the information received by the jurors was harmless. Xiong, 681 F.3d at 1076.

Several factors are relevant to an assessment of whether the government has overcome the presumption of prejudice. Thompson v. Borg, 74 F.3d 1571, 1578 (9th Cir. 1996). Among those factors are: (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(s) discussed and considered it; (4) whether the material was introduced before a verdict was reached, and if so at what point in the deliberations; and (5) any other matters which may bear on the issue of the reasonable possibility of whether the extrinsic material affected the verdict. Sassounian v. Roe, 230 F.3d 1097, 1109 (9th Cir. 2000); Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986). As part of the fifth factor, courts consider such matters as: (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; and (5) whether the statement was insufficiently prejudicial given the issues and evidence in the case. See Mancuso v. Olivarez, 292 F.3d 939, 952 (9th Cir. 2002).

Finally, even if a state court is found to have committed a constitutional error, habeas relief is warranted only if that error had a "substantial and injurious effect or influence in determining the jury's verdict." Penry, 532 U.S. at 784 (quoting Brecht, 507 U.S. at 637).

C. Discussion

Petitioner argues that the trial court's decision to allow jury deliberation to continue after a juror introduced extrinsic evidence of his prior guilty plea violated his rights Fourteenth Amendment right to due process and Sixth Amendment right to a fair trial. (Dkt. No. 1 at 18.) The Court agrees with the court of appeal in this matter that, although Juror No. 8's statements to her fellow jurors raise a presumption of prejudice, that presumption is rebutted by the curative steps the trial court took, and the jurors' assurances that they could be impartial. Further, Petitioner has not shown that the juror misconduct had a substantial and injurious effect, given the overwhelming evidence in favor of the jury's findings.

1. Presumption of Prejudice and Finding of Rebuttal

Upon interviewing each member of the jury, save for the juror who introduced the extrinsic information, the trial court learned that seven jurors had heard the statements. As the court of appeal held, this was sufficient to raise a presumption that Petitioner was prejudiced by Juror No. 8's conduct. However, the court of appeal concluded that this presumption of prejudice was conclusively rebutted by the circumstances surrounding the introduction of the extrinsic evidence and the trial court's efforts to ameliorate its effect. People v. Mays, 2011 WL 18743, at *10. Under the AEDPA standard, in order to prevail on his request for habeas relief, Petitioner must show that the court of appeal's conclusion was unreasonable. See 28 U.S.C. § 2254(e)(1); Patton, 467 U.S. at 1038 (trial court's conclusion that a juror was not biased is a finding of fact entitled to "special deference"). The Court finds that, taking into account the factors established by the Ninth Circuit in Sassounian and Mancuso, Petitioner has not established the unreasonableness of the court of appeal's determination.

The first Sassounian factor asks whether the information was actually received by the jury, and, if it was received, how. Here the information was actually heard by seven of the jurors who ultimately returned a guilty verdict. Those jurors heard that information from another juror during the course of deliberation. (See, e.g., 7 RT at 1183:15-25.) Introduction of evidence not presented in the court room into the jury room is wholly impermissible. See Turner v. Louisiana, 379 U.S. 466, 472-73 (1965) (evidence against a criminal defendant must "come from the witness stand in a public courtroom where there is full judicial protection of the defendant's right[s]"). Because this evidence against the defendant was heard by a majority of the jury and was not brought out in trial, this factor supports granting the writ.

The second factor seeks to determine how long the extrinsic evidence was available to the jury. The extrinsic evidence was introduced on March 27, 2009, the second day of deliberation and a Friday. The trial court gave its curative instructions on the following Monday, and deliberation continued for three more days. Thus, the members of the jury that heard the extrinsic evidence were aware of it for most of the deliberation. However, the time during which they had the information before the court instructed them to disregard it was relatively short by comparison. This factor does not strongly support granting or denying the writ.

The third factor takes into account how much the jurors considered the information and discussed it among themselves. With respect to this fact, the record indicates that not all of the jurors heard the comment as Juror No. 8 was soft-spoken. Some of those who did hear it indicated that Juror No. 8 made it in response to a juror's curiosity about the delay between the events and the trial. All of the jurors said that the extrinsic evidence was not discussed by anyone in the jury room from the time of its introduction by Juror No. 8 to the time of the trial court's voir dire of the jurors on the next court day. (See, e.g., 7 RT at 1186:2-5.) When the court interviewed each of the jurors the following Monday, none reported engaging in any discussion of the information that went beyond questioning how Juror No. 8 became aware of the information and asking whether it should be reported to the court. (See, e.g., 7 RT at 1171:19-26.) This factor does not support granting the writ.

The fourth factor considers the point in the deliberations that the information was introduced. Juror No. 8 made the comments on a Friday, the second day of deliberation. After the weekend, the trial court interviewed the jurors on Monday, and the jury continued deliberating for three more days. On one hand, if any members of the jury considered Juror No. 8's comments in their deliberations, those comments colored a substantial majority of the deliberations. On the other hand, the jurors were instructed to disregard Juror No. 8's comments soon after they were made. If the comments had had any lasting impact, the deliberations presumably would not have continued for as long as they did. Crediting the juror's fidelity to the court's instruction, the relative importance of this factor is diminished. It neither strongly supports granting or denying the writ.

The fifth factor looks to any other evidence suggesting that the information affected the jury's impartiality. Within this factor the Ninth Circuit has held that courts should analyze whether the prejudicial statement was ambiguously phrased, whether it was otherwise admissible or was cumulative, whether a curative instruction was given, the trial context, and how prejudicial the statement was. Mancuso, 292 F.3d at 952. These considerations cut both ways in the case at bar.

The nature of Juror No. 8's statements, indicating that Petitioner had already been determined to be guilty of the crime on which they were deliberating, favors granting the writ. Although the exact words Juror No. 8 used are unknown, all of the jurors understood Juror No. 8 to be telling them that Petitioner had received a long prison sentence after having previously been accused of the same crime, whether because he pleaded guilty or because another jury found him guilty. (See, e.g., 7 RT at 1168:25-1169:9.) The information was not evidence introduced at trial, and would have been inadmissible under both state and federal law. See Fed. R. Evid. 410 (withdrawn guilty plea inadmissible); Cal. Evid. Code § 1153 (same). In sum, the nature of Juror No. 8's statements would be expected to affect the jury's impartiality and would support granting the writ.

On the other hand, the trial judge spoke with each juror after learning about Juror No. 8's statements, explained to them that the statements could have been inaccurate and based on misinformation, and instructed them to disregard the statements and render a verdict based solely on evidence that was presented in court. (See, e.g., 7 RT 1185:13-25.) All of the jurors that heard the statements told the trial judge that they could disregard Juror No. 8's statements and decide the case based on the evidence presented in court alone. Based on these assurances and, presumably, the jurors' demeanor and other factors that cannot be captured in the record, the trial judge concluded that all of the jurors would be impartial. (See 7 RT 1199:8-11.) Again, the impartiality of jurors is a question of fact and is presumed to be correct unless rebutted by the habeas petitioner. 28 U.S.C. § 2254(e)(1); Patton, 467 U.S. at 1038 (trial court's conclusion that a juror was not biased is a finding of fact entitled to "special deference"). Petitioner has not made a showing such as would support a finding of incorrectness of the trial judge's fact conclusions.

Further, Juror No. 8's statements were not extremely prejudicial. All of the jurors that heard the statement told the court that they could remain impartial and not allow the statements to affect their deliberation. Indeed, most of the jurors who heard the statements, when queried said that they immediately chose not to credit them. (See, e.g., 7 RT 1185:22-1186:2.)

Petitioner argues that the United States Supreme Court's decisions in Mattox v. United States, 146 U.S. 140 (1892), Parker v. Gladden, 385 U.S. 363 (1966), and Remmer, 347 U.S. 227, all support granting the writ here. Those cases are all distinguishable. First, in both Mattox and Parker, the jurors received extrinsic evidence from court personnel (the bailiff) who expressed an opinion that the defendants were guilty or related information about the defendants' prior criminal history. Mattox, 146 U.S. 140, 142; Parker, 385 U.S. at 363-64. The Supreme Court in Parker specifically relied on the "the fact that the official character of the bailiff—as an officer of the court as well as the State—beyond question carries great weight with a jury which he had been shepherding for eight days and nights." Parker, 385 U.S. at 365. Further, one of the jurors in Parker testified that she was prejudiced by the extrinsic information.

Here, the juror who imparted the extrinsic evidence was not an officer of the court, and her statements did not carry the same weight as the bailiffs in Mattox and Parker. In fact, many of the jurors who heard Juror No. 8's statements dismissed them out of hand. (See, e.g., 7 RT 1185:22-1186:2.) The trial court questioned each juror individually and obtained their assurances that they were not affected by the information and would only consider the evidence presented at trial.

Second, in Remmer, after the verdict had been returned, the defendant learned that an unnamed person had approached a juror during the course of the trial and remarked that the juror could profit by returning a defense verdict. Remmer, 347 U.S. at 228. The juror reported the incident to the judge, the judge informed the prosecutors, and the matter was investigated by the Federal Bureau of Investigation during the course of the trial, none of which was disclosed to the defense during the trial. Id. The Supreme Court held that the record did not provide adequate evidence from which the petitioner or the court could know what actually occurred, whether the investigation of the FBI affected the jurors, and whether the incidents were harmful or harmless. Id. at 230. Thus, the Supreme Court remanded the case for further findings. Id. at 229. Here, by contrast, there is adequate evidence in the record—specifically the trial court's voir dire of the jurors on the court day following Juror No. 8's statements—from which the trial court and appellate court could determine any effect on the juror's partiality.

Both Mattox and Remmer emphasized that the presumption of prejudice arising from the jurors' exposure to extrinsic evidence may be rebutted with evidence showing the extrinsic information was harmless. See Mattox, 146 U.S. at150; Remmer, 347 U.S. at 229; see also Xiong, 681 F.3d at 1077 ("Mattox and Remmer teach that . . . the Government may overcome the presumption of prejudice with proof that the jury's consideration of extrinsic evidence was harmless."). Here, the court of appeal recognized that the extrinsic evidence introduced by Juror No. 8 created a presumption of prejudice, but ultimately concluded that the presumption had been rebutted by the other evidence in the record. People v. Mays, 2011 WL 18743, at *10. Petitioner offers no evidence or argument to show that this holding was contrary to or an unreasonable application of Supreme Court precedent. See 28 U.S.C. 2254(d).

Having analyzed all of the factors, this Court concludes that the presumption of prejudice was sufficiently rebutted. Certainly "the rights of confrontation and crossexamination are among the fundamental requirements of a constitutionally fair trial." Parker, 385 U.S. at 365. But not every instance of juror misconduct will result in prejudice. Smith, supra, 455 U.S. at 217 ("due process does not require a new trial every time a juror has been placed in a potentially compromising situation[; w]ere that the rule, few trials would be constitutionally acceptable"). The trial court's resolution of questions of juror impartiality is entitled to special deference. Patton, 467 U.S. at 1038. Petitioner has not offered a sufficient basis for finding the trial court's determination to deny a mistrial to be unreasonable.

2. Substantial and Injurious Effect

Even if the decision not to declare a mistrial and to allow deliberation to continue with the jurors who heard Juror No. 8's statements was constitutional error, Petitioner cannot show that the introduction of those statements had a "substantial and injurious effect on the verdict." Penry, 532 U.S. at 784 (quoting Brecht, 507 U.S. at 637). The evidence that Petitioner was guilty was substantial. During a recorded interrogation he admitted to killing the victim during the course of a burglary. Ballistics testing contradicted his version of the story, showing that instead of all of the shots being fired during a struggle, as Petitioner claimed, the fatal shot was fired with the gun pressed against the victim's forehead. The jury also heard testimony from witnesses who had conversations with Petitioner about plans to burglarize the victim's home. With this evidence and the other evidence presented against Petitioner, the jury had more than enough properly admitted evidence with which to find Petitioner guilty of first degree murder. Under those circumstances, any prejudice to Petitioner was minimal at most.

Again, the trial court interviewed each juror about the statements, polled each juror who heard the remarks as to their impartiality, and instructed those jurors to disregard the statements and decide the case based only on the evidence presented in court. In sum, with the strong evidence against him and the trial court's efforts to ensure that the jurors who would ultimately reach a verdict in the case were impartial, Petitioner cannot show that Juror No. 8's comments had a substantial and injurious effect upon the verdict. Consequently, habeas relief on this claim is DENIED.

CONCLUSION

For the reasons stated above, the Court finds Petitioner is not entitled to habeas relief. Accordingly, his petition is DENIED and a certificate of appealability will not issue.

The Clerk shall enter judgment in favor of Respondent and close the file.

IT IS SO ORDERED.