The opinion of the court was delivered by: Irma E. Gonzalez, Chief Judge
ORDER: (1) ADOPTING IN PART AND REJECTING IN PART THE MAGISTRATE JUDGE'S REPORT (Doc. No. 7); (2) DENYING THE PETITION FOR WRIT OF HABEAS CORPUS (Doc. No. 1); and (3) ISSUING CERTIFICATE OF APPEALABILITY.
On February 27, 2007, petitioner Carole Ann Rucker, a state prisoner proceeding through counsel, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging her June, 2003 conviction for attempted murder. (Doc. No. 1.) This matter was referred to United States Magistrate Judge Ruben B. Brooks pursuant to 28 U.S.C. § 636(b)(1)(B). On June 2, 2008, Magistrate Judge Brooks issued a Report and Recommendation ("Report") recommending the Court grant the petition for writ of habeas corpus as to petitioner's sub-claim that two female jurors committed misconduct. Magistrate Judge Brooks recommended the Court deny the remaining claims of the petition. Both parties have filed objections and replies.
Following de novo review of petitioner's claims, the Court hereby denies the petition for writ of habeas corpus in its entirety, adopts the Report in part, and issues a certificate of appealability as to all claims.
The Court hereby incorporates by reference the magistrate judge's accurate recitation of the facts as determined by the California Court of Appeal. (Report at 2-6.) As the magistrate judge noted, the Court presumes state court findings of fact to be correct. In summary, a jury convicted petitioner of attempted murder for shooting her ex-boyfriend, Bert Watson. After dating petitioner for two years, Watson ended the relationship and began to see other women in April of 2002. On May 29, 2002, petitioner and Watson spoke on the phone. Petitioner asked if she could come over to get her shoes from his condominium. They drank several glasses of wine and began to engage in sexual intercourse. Petitioner began to cry, and they stopped. Petitioner retrieved a gun from her purse and fired four shots at Watson. He fell to the ground, and petitioner walked over to him and fired two shots at point blank range. Petitioner then aimed the gun at her own head and fired twice, but the gun was out of bullets. Watson survived but was "lucky to be alive." The police apprehended petitioner in a parking lot in her apartment complex. She aimed her empty gun at an officer, and police responded by firing several times.
By information filed on October 4, 2002, the state charged petitioner with one count of attempted murder, four counts of exhibiting a firearm in the presence of peace officers, and one count of evading an officer. The court granted a motion for judgment of acquittal as to all the charges except for attempted murder and one count of exhibiting a firearm in the presence of a peace officer.
At trial, petitioner admitted to shooting Watson. She testified that although she consented to intercourse with Watson, it hurt her. This triggered her memories of being raped by other men, and she experienced a dissociative episode. The prosecution also offered evidence that petitioner had a propensity to commit domestic violence. David Yu testified at trial that petitioner had threatened him with her gun when they stopped seeing each other in 1998. Over the course of two years, petitioner harassed Yu by, among other things, chasing him on the freeway, putting paint on his car, and super-gluing his car door locks. Yu obtained a restraining order against petitioner, and the harassment stopped.
On June 17, 2003, the jury returned a guilty verdict on the attempted murder and firearm exhibition counts. The jury also found that petitioner personally discharged a firearm causing great bodily injury, personally used a firearm, and personally inflicted great bodily injury.
On August 4, 2003, petitioner filed a motion for a new trial. Petitioner based the motion in part on claims of juror misconduct contained in a declaration by the jury foreperson. The foreperson stated in pertinent part:
During jury deliberations, the female juror with the blonde hair in the front row, juror #9 I believe, commented a number of times regarding the fact that she had previously been raped and physically abused . . . . Her attitude towards the defendant seemed antagonistic and self-righteous in that since she had never resorted to using a gun when she had been attacked, therefore the defendant should have acted similarly. These comments were made to influence the rest of the jury panel who seemed to rely on these statements as being relevant facts. This juror said the defendant was not a normal person and did not behave in a normal fashion when she reacted to the provocation in the manner in which she reacted.
Juror #2 (female with black hair) mentioned during deliberations that she had been under psychiatric care. She also stated she had been physically attacked by a male in the past. She used these events in her past to try and persuade the jurors that the defendant must be guilty of attempted murder due to the fact that this juror did not react to an attack in the manner in which the defendant reacted. . . . . Prior to the verdict, I logged on to the Internet and went to the Google website whereupon I looked up the name of the defendant, Carole Ann Rucker. I read what information was available. On the second day of testimony, I noticed the San Diego Union-Tribune headline, "She Shot Him 4 Times But Was It Murderous Intent?" and read the article. The headline seemed biased and affected me negatively. (Court Transcript (hereinafter "CT") at 190-91.)
The court held hearings on the motion for new trial on August 5 and August 27, 2008. At the second hearing, the court denied the motion for new trial.
Petitioner appealed her conviction on several grounds, including jury misconduct. The California Court of Appeal affirmed in a partially published decision on February 15, 2005. (Lodgment No. 7.) The California Supreme Court denied petitioner's petition for review without citation or comment on May 18, 2005 (Lodgment No. 11) and petitioner's petition for writ of habeas corpus without citation or comment on July 26, 2006 (Lodgment No. 13).
Petitioner filed a timely petition for writ of habeas corpus in this Court on February 27, 2007. (Doc. No. 1.) Petitioner claims the trial court violated her right to due process of law by (l) denying her motion for new trial on the basis of jury misconduct; (2) instructing the jury it could draw a permissive inference of guilt based on petitioner's prior incidents of domestic violence; and (3) admitting evidence of petitioner's propensity to commit domestic violence. (Doc. No. 1.) Respondent filed an answer on May 7, 2007. (Doc. No. 5.) On June 28, 2007, petitioner filed a traverse. (Doc. No. 6.) Magistrate Judge Brooks issued his Report on June 2, 2008. (Doc. No. 7.) Respondent filed objections to the Report on June 17, 2008. (Doc. No. 8.) After an extension of time, petitioner filed objections to the Report on July 2, 2008. (Doc. No. 13.) Petitioner and respondent each filed replies. (Doc. Nos. 14 & 15.)
The magistrate judge set forth the appropriate standard of review with regard to the petition. (Report at 5-7.) Where, as here, the California Supreme Court summarily denied petitioner's request for review, the Court analyzes the California Court of Appeal's opinion as the "last reasoned decision" on the merits of petitioner's case. Ylst v. Nunnemaker, 501 U.S. 797, 803-04 (1991); Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004). A petition under 28 U.S.C. § 2254 can be granted only if the California courts decided petitioner's case in a manner that was either "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States," or "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); Williams v. Taylor, 529 U.S. 362, 403, 412-13 (2000).
The Court reviews de novo those portions of the Report to which petitioner objects. 28 U.S.C. § 636(b)(1)(C); Holder v. Holder, 392 F.3d 1009, 1022 (9th Cir. 2004).
After trial, petitioner filed a motion for new trial supported by a declaration of the jury foreperson. The foreperson stated he read on-line news articles about the case and they influenced him. The foreperson also stated that during deliberations, two female jurors discussed their previous experiences as victims of rape and assault.
At the first hearing, the trial court expressed disbelief in the foreperson's truthfulness. The court noted "this particular gentleman during the trial made every effort at every opportunity to make sure that we all knew he was there or not there, to now inject himself and be the genesis of yet another controversy surrounding this case is not surprising. Although troubling and likely criminal, it is not surprising." (Reporter's Transcript (hereinafter "RT") at 1020.)
At the second hearing, the foreperson appeared with counsel and, invoking his Fifth Amendment right against self-incrimination, refused to testify. The trial court considered declarations from four other jurors filed by the government in opposition to the motion. (CT at 209-22.) These declarations contradicted the foreperson's declaration in nearly all respects. Three of the jurors confirmed the foreperson's assertion that two female jurors, numbers two and nine, discussed prior physical assaults in the context of evaluating the reasonableness of petitioner's conduct. (CT at 212, 219 & 222.) The prosecution also submitted evidence that the foreperson visited petitioner in prison shortly after the verdict and shortly before the new trial hearing. (CT at 223-25.) After oral argument, both sides submitted on the papers. (RT at 1047.)
The court denied the motion, finding the foreperson's allegations were not credible and finding petitioner's trial was fair. Petitioner claims the court unreasonably determined the facts and unreasonably applied federal law in failing to find misconduct by either the foreperson or jurors two and nine. Because the issues raised are distinct, the Court treats these as separate sub-claims.
A. The Foreperson's Exposure to News Articles
Petitioner claims the trial court violated her due process rights by failing to hold an evidentiary hearing on her allegations of juror misconduct. Petitioner also argues the court should have applied a presumption of prejudice under Remmer v. United States, 347 U.S. 227, 228 (1954) based on the foreperson's exposure to extraneous information from on-line news sources.
1. The Magistrate Judge's Report
The magistrate judge accurately summarized the trial court's two hearings. The magistrate judge concluded that because the foreperson did not discuss the articles with the jury, no "extraneous" information was injected into the jury deliberations and thus no presumption of prejudice was warranted. The magistrate judge also found the trial court's determination that the foreperson was not credible was not clearly erroneous, and that failure to further develop the factual record was not contrary to or an unreasonable applicable of federal law as declared by the Supreme Court.
2. Petitioner's Objections
Petitioner argues the magistrate judge should not have deferred to the state court's factual findings because they were "unreasonably determined" under 28 U.S.C. § 2254(d). Petitioner argues under Taylor v. Maddox, 366 F.3d 992 (9th Cir. 2004), the trial court should have held an evidentiary hearing.
Petitioner further argues a presumption of prejudice applies because the foreperson consulted on-line news articles about the case, even if he never discussed those sources during deliberations. Petitioner argues the bias of a single juror violates her right to a fair trial under Estrada v. Scribner, 512 F.3d 1227, 1239-40 (9th Cir. 2008).
Respondent argues the factual findings of the trial court are entitled to deference because the court did not use a flawed procedure and gave petitioner the opportunity to adequately develop the facts. Respondent notes that in the Ninth Circuit, trial courts have discretion in deciding whether an evidentiary hearing is appropriate. The trial court must consider "the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source." United States v. Saya, 247 F.3d 929, 934-35 (9th Cir. 2001). Because the foreperson was not credible, respondent argues the trial court properly rejected his allegations of misconduct.
As the magistrate judge correctly noted, the California Court of Appeal denied petitioner's claim of juror misconduct by the foreperson in its decision on direct review. The Court of Appeal found the trial court's decision "amply supported by the declarations of the other jurors who disputed the foreperson's version of what had occurred, by his recalcitrance in the jury room, by the foreperson's visits to Rucker in jail, and by the court's own observations of the foreperson." (Lodgment 7 at 22.) In the alternative, the court concluded "even if we were to agree" and apply a presumption of prejudice, "[a]ny presumption of prejudice that arose is clearly rebutted by the newspaper article itself." (Id.)
Accordingly, the Court must determine whether the California Court of Appeal's decision was based on an unreasonable determination of the facts, or was contrary to, or an unreasonable application of, clearly-established federal law as articulated by the Supreme Court.
b. Trial Court's Failure to Hold an Evidentiary Hearing
Petitioner incorrectly argues the trial court must hold an evidentiary hearing with live witnesses when presented with evidence of juror misconduct. The Ninth Circuit has expressly found failure to hold such a hearing sua sponte is not contrary to, or an unreasonable application of, clearly ...