EDWARD M. CHEN, District Judge.
Sergio Pablo, a state prisoner at Calipatria State Prison, has filed a pro se petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his 2009 conviction for robbery and carjacking. The petition is now ready for a decision on the merits. For the reasons discussed below, the petition is denied.
The California Court of Appeal summarized the evidence of the crimes presented at a joint trial of Pablo and co-defendants Jorge Rico and Cesar Valle:
People v. Rico, 2011 WL 5910073 at *1-2 (Cal. App. 6 Dist. 2011); Ex. 8.
At a joint jury trial in Monterey County Superior Court, Pablo was found guilty of multiple counts of kidnaping for robbery, kidnaping to facilitate carjacking, carjacking, second degree robbery and participation in a criminal street gang. Clerk's Transcript ("CT") at 905.1-905.29. It was also found that Pablo was armed with a firearm and committed the crimes for the benefit of a criminal street gang. Id. He was sentenced to 25 years to life in prison. CT at 1075.10-1075.15.
On November 28, 2011, the California Court of Appeal affirmed the judgment of conviction, but modified the sentence to an indeterminate term of life in prison and a determinate term of ten years for the enhancements and modified the judgment to reflect certain custody credits. People v. Rico, 2011 WL 5910073 at *26-28; Ex. 8. The California Supreme Court summarily denied Pablo's petition for review. Ex. 11. Pablo then filed this federal petition for writ of habeas corpus. The Court issued an order to show cause why the petition should not be granted. Respondent has filed an answer and Pablo filed a traverse.
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 Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was 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 Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] 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 decision 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.
The standard of review under AEDPA is somewhat different where the state court gives no reasoned explanation of its decision on a petitioner's federal claim and there is no reasoned lower court decision on the claim. In such a case, a review of the record is the only means of deciding whether the state court's decision was objectively reasonable. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). When confronted with such a decision, a federal court should conduct an independent review of the record to determine whether the state court's decision was an objectively unreasonable application of clearly established federal law. Himes, 336 F.3d at 853; Delgado, 223 F.3d at 982.
Pablo argues that: (1) his Sixth and Fourteenth Amendment rights to an impartial jury and a fair trial were violated due to juror misconduct and the trial court's denial of a motion for a new trial; (2) the trial court erred in denying his motion for an evidentiary hearing based on the juror misconduct and by not providing the confidential contact information for a juror; and (3) cumulative error. The Court will address each claim in turn.
Pablo argues that his right to an impartial jury was violated when the mother of one of the co-defendants told a juror that the co-defendant had spent the last ten years in jail and this was his last chance, and the jury was aware that the co-defendant had committed a prior crime because the prior strike had been mistakenly submitted to the jury during the trial.
The Sixth Amendment guarantees to the criminally accused a fair trial by a panel of impartial jurors. U.S. Const. amend. VI; see Irvin v. Dowd, 366 U.S. 717, 722 (1961). "Even if only one juror is unduly biased or prejudiced, the defendant is denied his constitutional right to an impartial jury." Tinsley v. Borg, 895 F.2d 520, 523-24 (9th Cir. 1990) (internal quotations omitted). The Ninth Circuit has recognized that to disqualify a juror for cause requires a showing of actual bias or implied bias, that is "bias in fact, or bias conclusively presumed as a matter of law." United States v. Gonzalez, 214 F.3d 1109, 1111-12 (9th Cir. 2000). However, the Constitution "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). The safeguards of juror impartiality, such as voir dire and protective instructions from the trial judge, are not infallible; it is virtually impossible to shield jurors from every contact or influence that might theoretically affect their vote. Id. Due process only means a jury capable and willing to decide the case solely on the evidence before it and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen. Id.
Clearly established federal law, as determined by the Supreme Court, does not require state or federal courts to hold a hearing every time a claim of juror bias is raised by the parties. Tracey v. Palmateer, 341 F.3d 1037, 1045 (9th Cir. 2003); see, e.g., Estrada v. Scribner, 512 F.3d 1227, 1241 (9th Cir. 2008) (district court did not abuse its discretion in declining to hold hearing on juror bias where state court's determination was not unreasonable in finding two jurors were not actually biased, and that juror bias could not be presumed based on jurors' honesty during voir dire). Remmer v United States, 347 U.S. 227 (1954), and Smith v. Phillips, 455 U.S. 209 (1982), "do not stand for the proposition that any time evidence of juror bias comes to light, due process requires the trial court to question the jurors alleged to have bias. Smith states that this `may' be the proper course, and that a hearing `is sufficient' to satisfy due process." Tracey, 341 F.3d at 1044 (citing Smith, 455 U.S. at 217, 218). Smith leaves open the door as to whether a hearing is always required and what else may be "sufficient" to alleviate any due process concerns. Id.; see, e.g., id. at 1044-45 (concluding that state trial court's decision not to question juror further to obtain names of other jurors and to take additional testimony from them was not contrary, or an unreasonable application of, clearly established Supreme Court precedent).
A court confronted with a colorable claim of juror bias will generally conduct an investigation. Davis v. Woodford, 384 F.3d 628, 652-53 (9th Cir. 2004). Where there is no evidence that premature deliberations took place, however, or that jurors relied on extrinsic evidence, an investigation may not be necessary, especially if the judge provides an appropriate instruction. Id. (implicitly rejecting juror bias claim, where juror submitted note to judge before deliberations expressing skepticism about whether defendant would remain in prison if jury returned a noncapital sentence, and judge provided a detailed instruction that jurors should presume that state officials would properly perform their duties when executing the sentence but did not conduct an investigation).
The Sixth Amendment guarantee of a trial by jury requires the jury verdict to be based on the evidence presented at trial. See Turner v. Louisiana, 379 U.S. 466, 472-73 (1965). Evidence not presented at trial is deemed "extrinsic." See Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987). Jury exposure to extrinsic evidence deprives a defendant of the rights to confrontation, cross-examination and assistance of counsel embodied in the Sixth Amendment. See Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995).
"The presumption of prejudice that arises from juror misconduct, although strong, is not conclusive; `the burden rests heavily upon the Government to establish, after notice to and hearing of the defendant, that such contact with the juror was harmless to the defendant.'" Xiong v. Felker, 681 F.3d 1067, 1076 (9th Cir. 2012) (quoting Remmer v. United States, 347 U.S. 227, 228-29 (1954)). A petitioner is entitled to habeas relief only if it can be established that the exposure to extrinsic evidence had "`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)). In other words, the error must result in "actual prejudice." See Brecht, 507 U.S. at 637.
The Ninth Circuit has identified several factors that are relevant in determining whether the alleged introduction of extrinsic evidence constitutes reversible error:
Lawson, 60 F.3d at 612 (quoting Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986), and incorporating Brecht). See, e.g., United States v. Saya, 247 F.3d 929, 937-38 (9th Cir. 2001) (denial of motion for new trial not reversible error where several jurors learned that defendant's girlfriend had been killed while sitting beside defendant in a car several years earlier in a well-publicized killing; although the incident was mentioned in the jury room, the district court could not determine whether the jurors discussed it before or after the verdict was reached, the discussion was minimal, the foreperson immediately stated that such information was not to be considered in reaching a verdict, the shooting was not connected with the present crime, defense counsel already stated that the girlfriend was dead and had run a gambling house, and the case against the defendant was strong). The reviewing court should place great weight on the nature of the extrinsic evidence introduced, e.g., whether it related to a material issue in the case, see Lawson, 60 F.3d at 612, but not on the number of jurors affected by it, see id. at 613. Even a single juror's improperly influenced vote deprives the defendant of an unprejudiced, unanimous verdict. See id.
The state court set forth the relevant background for this claim:
Rico, 2011 WL 5910073 at *19-20; Ex. 8.
The court of appeal then discussed the applicable state law and denied this claim:
Rico, 2011 WL 5910073 at *21-23; Ex. 8.
Pablo has failed to demonstrate that the state court denial of this claim is contrary to federal authority. The state court found that Pablo suffered no prejudice as a result of the information learned by the juror and he has failed to establish that the alleged exposure to extrinsic evidence had a substantial and injurious effect on the verdict.
Pablo argues that the jury improperly learned that his co-defendant, Rico, had spent the last ten years in jail and the prior crime had been a weapons related offense, and this "hardened the jury against all of the defendants." Petition at 3. However, most of this information was properly admitted into evidence elsewhere at trial and known to the jury. A gang expert testified that Rico was incarcerated from 1998 to 2006 due to a gang-related offense. Reporter's Transcript ("RT") at 3187-88. It was stipulated to the jury that co-defendant Rico has previously been convicted of a felony listed in California Penal Code § 12021(e). RT at 3305.
Also, Rico's mother's comments were not clearly a statement that she expected her son to be convicted in the case. Rather, as the state court noted, it was as likely an expression of her fear that he would be imprisoned for a long time if convicted.
Moreover, Pablo fails to sufficiently describe how it adversely affected the jury verdict against him, especially as the information related not to him, but a co-defendant. It is Pablo's burden to demonstrate a constitutional violation, and his conclusory allegations with no support are insufficient. See James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) (emphasizing that "[c]onclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief.").
Furthermore, there was overwhelming evidence against the defendants presented to the jury that found multiple defendants guilty of many counts after deliberating for only about a day. CT at 853-54. Pablo was observed by police fleeing the SUV that was involved in the carjacking and a gun was recovered from an area where Pablo had run through after fleeing from police.
Finally, the jury was also properly instructed by the trial court. They were instructed to "use only the evidence that was presented in this courtroom. Evidence is the sworn testimony of witnesses, the exhibits admitted into evidence, and anything else I told you to consider as evidence." RT at 4327. With respect to the charge against co-defendant Rico for unlawfully possessing a firearm, the jury was instructed that "the defendant and the People have stipulated or agreed that the defendant was previously convicted of a felony. This stipulation means that you must accept this fact as proved. Do not consider this fact for any other purpose. Do not speculate or discuss the nature of the conviction." RT at 4360.
Looking at the factors set forth by the Ninth Circuit in Lawson and Bayramoglu, petitioner is not entitled to relief. Most importantly, much of the material in question was properly admitted into evidence during trial. Due to the great deal of evidence against Pablo and the fact that the extraneous material concerned his co-defendant and not him, Pablo cannot show that the material had a substantial and injurious effect on the jury's verdict nor was it inherently likely to influence the jury. While it is not known if all the material was actually received by the jury and to what extent it was available and considered, the only material that was improperly before them was that co-defendant Rico's prior crime had been a gun-related offense. But the jury was properly instructed that Rico had a prior conviction and had been in prison for nearly ten years. Pablo has failed to demonstrate actual prejudice from this error, and the state court denial of this claim was not an unreasonable application of Smith v. Phillips, 455 U.S. 209, 217 (1982) and Irvin v. Dowd, 366 U.S. 717, 722 (1961). Thus, this claim is denied.
Pablo next argues that the trial court erred in denying an evidentiary hearing and by not providing the confidential contact information for a juror.
In denying Pablo's claim regarding the jury contact information the California Court of Appeal stated:
Rico, 2011 WL 5910073 at *24 (footnote omitted); Ex. 8.
Regardless of whether the trial court erred in refusing to release juror information under state law rules, Pablo cites no United States Supreme Court authority recognizing a federal constitutional right to have jury information unsealed, particularly where it appears the information from the juror is not likely to be of constitutional significance. See e.g., Yang v. McDonald, 2012 WL 6738311 at *18 (E.D. Cal. 2012); White v. Knowles, 2011 WL 1196053 at *5 (N.D. Cal. 2011). Absent a showing of a constitutional violation, habeas relief is not warranted. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." (citations omitted)). Nor can Pablo transform a state law issue into a federal one merely by asserting a violation of due process. Langford v. Day, 110 F.3d 1380, 1389 (9th Cir. 1996). For the same reasons why the juror misconduct did not give rise to a due process violation as discussed above, the failure to release juror information to investigate the same claim does not give rise to a due process claim.
Nor is Pablo entitled to habeas relief due to the trial court denying his request for an evidentiary hearing. As noted above, there is no clearly established federal law, as determined by the Supreme Court, that requires state or federal courts to hold a hearing every time a claim of juror bias is raised by the parties. Tracey, 341 F.3d at 1045. Again, the allegations of juror misconduct did not rise to a level to warrant a hearing in the trial court, as Pablo failed to show good cause for the release of the juror information. See Cal. Code Civ. Proc. § 237 (b). As there is no Supreme Court authority to support Pablo's allegations, this claim is denied.
Pablo next argues that the cumulative effect of his prior claims denied him due process and he is therefore entitled to habeas relief.
In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that the conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003) (reversing conviction where multiple constitutional errors hindered defendant's efforts to challenge every important element of proof offered by prosecution). Cumulative error is more likely to be found prejudicial when the government's case is weak. See id. However, where there is no single constitutional error existing, nothing can accumulate to the level of a constitutional violation. See Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011). Similarly, there can be no cumulative error when there has not been more than one error. United States v. Solorio, 669 F.3d 943, 956 (9th Cir. 2012).
Preliminarily, the Court notes that this claim has not been exhausted in state court. Nonetheless, federal courts may deny a petition filed by a state prisoner on the merits, "notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2). This procedure should be utilized "only when it is perfectly clear that the applicant does not raise even a colorable federal claim." Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005).
The Court has found no errors let alone multiple constitutional errors that would warrant habeas relief. The majority of information learned by the jury from outside sources was already properly admitted at trial and the extraneous material did not prejudice Pablo. Nor was this a case where the government's case was weak as there was overwhelming evidence of Pablo's role in the crimes. This claim based on asserted cumulative error is denied.
The petition for writ of habeas corpus is
The federal rules governing habeas cases brought by state prisoners require a district court that enters a final order adverse to a petitioner to grant or deny a certificate of appealability ("COA") in the ruling. See Rule 11(a), Rules Governing § 2254 Cases, 28 U.S.C. foll. § 2254.
A petitioner may not appeal a final order in a federal habeas corpus proceeding without first obtaining a COA. See 28 U.S.C. § 2253(c); Fed. R. App. P. 22(b). A judge shall grant a COA "only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). The certificate must indicate which issues satisfy this standard. 28 U.S.C. § 2253(c)(3). "Where a district court has rejected the constitutional claims on the merits, the showing required to satisfy § 2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Although the Court has denied the petition, jurists of reason may find the result debatable or wrong with respect to the first claim of juror misconduct. Therefore, a COA is
The Clerk shall enter judgment and close the file.
IT IS SO ORDERED.
