FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 1999 judgment of conviction entered against him in Sacramento County Superior Court on charges of four counts of lewd and lascivious conduct with a minor and three counts of pandering. He seeks relief on the grounds that: (1) his right to due process was violated by juror misconduct; (2) the prosecutor committed misconduct; and (3) his trial and appellate counsel rendered ineffective assistance. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
I. Procedural and Factual Background*fn1
A jury convicted [petitioner] Anthony Gibbs of four counts of lewd and lascivious conduct and three counts of pandering involving Jonnisha A. [Petitioner] received a total prison sentence of 13 years . . .
In January 1996, [petitioner] and Jonnisha, then 14 years old, began a sexual relationship. This sexual relationship continued until Jonnisha was 16 years old.
In April and May 1998, while [petitioner] was in the Sacramento County Jail, he wrote letters to Jonnisha discussing prostitution. In these letters [petitioner] instructed Jonnisha on prostitution, including where to go, what to say, and what to charge for sexual acts.
In September 1998, after [petitioner] was released from custody, he helped Jonnisha find locations to be a prostitute, set charges for sex acts, bought her condoms, and provided her with personal protection. Jonnisha began prostituting herself in Sacramento.
On September 15, 1998, Jonnisha picked up an undercover officer. She and the officer drove to a nearby motel and entered a room in the motel. The officer revealed his identity and placed Jonnisha under arrest. While searching the motel room, an assisting officer found the defendant dressed in his underwear and sitting in the bathroom.
A. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings 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.
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it 'applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it 'confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. 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 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
Petitioner's first claim is that his right to due process was violated by juror misconduct.
Petitioner raised this claim in a petition for a writ of habeas corpus filed in the Sacramento County Superior Court. Answer, Ex. G. Citing In re Dixon, 41 Cal.2d 756, 759 (1953) and In re Harris, 5 Cal.4th 813, 829, the Superior Court denied petitioner's claim of juror misconduct on the ground that it "could have been raised on appeal." Answer, Ex. H. Petitioner subsequently raised his claim of juror misconduct in a habeas corpus petition filed in the California Court of Appeal. Answer, Ex. I. The California Court of Appeal denied the petition with at citation to In re Hillery, 202 Cal.App.2d 293 (1962).*fn2 Answer, Ex. J. Petitioner raised his juror misconduct claim again in a petition for a writ of habeas corpus filed in the California Supreme Court. Answer, Ex. K. That petition was summarily denied by order dated July 30, 2003. Answer, Ex. L.
Respondents argue that the Superior Court's citation to In re Dixon constitutes a procedural bar precluding this court from considering the merits of petitioner's claim of juror misconduct. Answer at 11-14. The court will address this contention below.
State courts may decline to review a claim based on a procedural default. Wainwright v. Sykes, 433 U.S. 72, 81-82 (1977). As a general rule, a federal habeas court "'will not review a question of federal law decided by a state court if the decision of that court rests on a state law ground that is independent of the federal question and adequate to support the judgment.'" Calderon v. United States District Court (Bean), 96 F.3d 1126, 1129 (9th Cir. 1996) (quoting Coleman v. Thompson, 501 U.S. 722, 729 (1991)). The state rule is only "adequate" if it is "firmly established and regularly followed." Id. (quoting Ford v. Georgia, 498 U.S. 411, 424 (1991)). See also Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003) ("[t]o be deemed adequate, the state law ground for decision must be well-established and consistently applied.")
The state rule must also be "independent" in that it is not "interwoven with the federal law." Park v. California, 202 F.3d 1146, 1152 (9th Cir. 2000) (quoting Michigan v. Long, 463 U.S. 1032, 1040-41 (1983)). Even if the state rule is independent and adequate, the claims may be heard if the petitioner can show: (1) cause for the default and actual prejudice as a result of the alleged violation of federal law; or (2) that failure to consider the claims will result in a fundamental miscarriage of justice. Coleman, 501 U.S. at 749-50.
Procedural default is an affirmative defense, and the state has the burden of showing that the default constitutes an adequate and independent ground. Insyxiengmay v. Morgan, 403 F.3d 657, 665-66 (9th Cir. 2005); Bennett, 322 F.3d at 585-86. The Dixon bar may be "independent" as applied in this case. See Bennett, 322 F.3d at 581-83. However, respondents have not met their burden of demonstrating that the Dixon bar is "adequate," having been regularly and consistently applied in habeas actions post-1993.*fn3 322 F.3d at 583-86. See also Wyrick v. Newland, No. C 03-5623 JSW, 2007 WL 760529, at *5-6 (N.D. Cal. Mar. 9, 2007) (rejecting argument that citation to Dixon constituted adequate procedural bar and finding that the state had failed to meet its burden of proof under Bennett of establishing the adequacy of the procedural bar to preclude federal review). This court finds respondents' claim of procedural default unpersuasive. Accordingly, the court will address petitioner's claim of juror misconduct on the merits.
As explained above, after the California Superior Court rejected petitioner's claim of juror misconduct on procedural grounds, petitioner raised the claim again in habeas petitions filed in the California Court of Appeal and the California Supreme Court. The Court of Appeal exercised its discretion to deny the claim because it had not been raised in the Superior Court.
The Supreme Court summarily denied the petition, thereby adopting the reasoning of the Court of Appeal. See Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991) ("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" and where "the last reasoned opinion on the claim explicitly imposes a procedural default, we will presume that a later decision rejecting the claim did not silently disregard that bar and consider the merits" ). Because all of the California courts to consider petitioner's claim of juror misconduct denied the claim on procedural grounds and not on the merits, the claim must now be reviewed de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003) (when a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002) (same). Accordingly, this court will review de novo petitioner's claim of juror misconduct.
Petitioner claims that his conviction should be reversed because of juror misconduct. Specifically, he claims that one of his jurors lied during voir dire and was exposed to improper "extra-judicial contacts & statements." Pet. at 5.
The state court record reflects that after the jury verdict was rendered but before sentencing proceedings began, the trial court summoned one of petitioner's jurors (Juror No. 6) for questioning because petitioner had told his trial counsel that the juror was a former friend of his. Reporter's Transcript on Appeal (RT) at 426-28. Upon being questioned, the juror informed the trial court that, although she recognized petitioner's face when she first saw him in the courtroom, she had never met him before and did not know his name. Id. at 430-31. She stated that she found out after the trial that petitioner was a friend of her cousin's. Id. at 431.
I do not know [petitioner]. I have never known [petitioner]. I have seen his face, yes, but I do not know him. I never had a conversation with him, nothing.
Id. at 435. Juror No. 6 also testified that petitioner did not know her. Id. at 436. She stated that if she had known petitioner, she would "have known to dismiss [herself] from the . . . trial." Id. at 435. When asked why she didn't inform the court that she recognized petitioner's face, she responded that she "didn't think it was important because I don't know him." Id. at 445. She explained that the judge asked the jurors if they "knew the Defendant. I don't know the Defendant." Id. at 446.
The juror also stated that, the day before deliberations began, a woman who she believed to be petitioner's mother approached her in the elevator, asked her whether she was "EJ's cousin," and told her that "EJ said vote no on all counts." Id. at 432, 434. The juror immediately pulled her arm from the woman's grasp and said, "Ma'am, I am not allowed to discuss this case." Id. The woman "tried to hold [her] in the elevator for a few seconds," but the juror pulled her arm from the woman's grasp again and repeated that she was not allowed to discuss the case. Id. When asked why she didn't inform the court about this incident, especially in light of the court's admonition to advise the court if there was any reason a juror could not be fair or impartial, the juror responded that she didn't know petitioner and "when his mother approached me, I just disregarded it." Id. at 446. She explained that she "didn't take into consideration what [the woman] had said" and she "didn't feel that it was important." Id. at 448.
At one point during the juror's questioning, the trial judge stated, "my interest is whether this witness knew [petitioner] at the time she served on the jury, and the answer to that question seems to me plainly no from this witness." Id. at 440-41. The court did not rule on whether misconduct had occurred, but gave petitioner's trial counsel time to consider whether to file a motion for new trial on the basis of juror misconduct. Id. at 455-56. No motion for new trial was filed on this basis.
c. Applicable Law -- Actual or Presumed Juror Bias
The Sixth Amendment right to a jury trial "guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961). See also Ross v. Oklahoma, 487 U.S. 81, 85 (1988); Green v. White, 232 F.3d 671, 676 (9th Cir. 2000). Due process requires that the defendant be tried by "a jury capable and willing to decide the case solely on the evidence before it." Smith v. Phillips, 455 U.S. 209, 217 (1982). Jurors are objectionable if they have formed such deep and strong impressions that they will not listen to testimony with an open mind. Irvin, 816 U.S. at 722 n.3. A defendant is denied the right to an impartial jury if even one juror is biased or prejudiced. Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc); United States v. Eubanks, 591 F.2d 513, 517 (9th Cir. 1979). Thus, "[t]he presence of a biased juror cannot be harmless; the error requires a new trial without a showing of actual prejudice." Gonzalez, 214 F.3d at 1111 (quoting Dyer, 151 F.3d at 973 n.2).
Courts have analyzed juror bias under two theories, actual bias and implied (or presumed) bias, either of which may support a challenge of a prospective juror for cause. Fields v. Brown, 503 F.3d 755, 766 (9th Cir. 2007). Actual bias is "'bias in fact' -- the existence of a state of mind that leads to an inference that the person will not act with entire impartiality." Gonzalez, 214 F.3d at 1112 (quoting United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997)). "Although actual bias is the more common grounds for excusing jurors for cause, '[i]n extraordinary cases, courts may presume bias based upon the circumstances.'" Gonzalez, 214 F.3d at 1112 (quoting Dyer, 151 F.3d at 981). See also McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556-57 (1984). Thus, the Ninth Circuit has, in several cases, presumed bias from "the 'potential for substantial emotional involvement, adversely affecting impartiality,' inherent in certain relationships." Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (quoting United States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977)). See also Green, 232 F.3d at 676; Gonzalez, 214 F.3d at 1112-14; Dyer, 151 F.3d at 981-82; Eubanks, 591 F.2d at 517.*fn4
The distinction between actual and implied bias has been explained as follows:
Unlike the inquiry for actual bias, in which we examine the juror's answers on voir dire for evidence that she was in fact partial, the issue for implied bias is whether an average person in the position of the juror in controversy would be prejudiced. Accordingly, we have held that prejudice is to be presumed where the relationship between the prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.
Gonzalez, 214 F.3d at 1112 (citations and internal quotes omitted) (emphasis in original). Accordingly, implied bias may be found despite a juror's denial of any partiality. Torres, 128 F.3d at 45 ("And in determining whether a prospective juror is impliedly biased, 'his statements upon voir dire [about his ability to be impartial] are totally irrelevant.'"); Gonzales v. Thomas, 99 F.3d 978, 987 (10th Cir. 1996); United States v. Nell, 526 F.2d 1223, 1229 n.8 (5th Cir. 1976) (The concept of implied or presumed bias arises from "situations in which the circumstances point so sharply to bias in a particular juror that even his own denials must be discounted."). Implied bias is bias conclusively presumed as a matter of law. United States v. Wood, 299 U.S. 123, 133 (1936); United States v. Greer, 285 F.3d 158, 171 (2d Cir. 2000) (citing Torres, 128 F.3d at 45). On collateral review, a petitioner alleging juror misconduct must show that the alleged error " 'had substantial and injurious effect or influence in determining the jury's verdict.'" Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir. 1993) (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
In McDonough, a juror failed to inform the trial court, after a question on voir dire seeking to elicit information about previous injuries to members of the juror's immediate family that resulted in disability or prolonged pain, that his son had sustained such an injury. 464 U.S. at 550. The juror explained that he did not believe his son's injury (a broken leg) was relevant to the trial court's inquiry because it did not result in disability or prolonged pain. Id. at 552 n.3. In declining to order a new trial on the basis of juror bias, the United States Supreme Court explained:
To invalidate the result of a three-week trial because of a juror's mistaken, though honest response to a question, is to insist on something closer to perfection than our judicial system can be expected to give. A trial represents an important investment of private and social resources, and it ill serves the important end of finality to wipe the slate clean simply to recreate the peremptory challenge process because counsel lacked an item of information which objectively he should have obtained from a juror on voir dire examination.
Id. at 555. The Supreme Court held in that case that "to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause." Id. at 556.
In Fields, a juror in a rape trial disclosed on voir dire that his wife had been assaulted and beaten, but failed to specify that she had also been raped. When questioned after the verdict at an evidentiary hearing before the federal district court about this voir dire answer, the juror explained that when he volunteered that his wife had been assaulted and beaten, he expected for people in the courtroom to understand that she had been sexually abused. Fields, 503 F.3d at 765. The juror testified that, if asked, he would have said that he could be fair and impartial. Id.
He explained that he told the truth when he stated he would base his decision strictly on the evidence presented, and stated that he did his best to be a fair juror. Id. The district court found that the juror was not dishonest during voir dire, that he was not actually biased, and that application of the implied bias doctrine in the absence of juror dishonesty would be a new rule barred by Teague v. Lane, 489 U.S. 288 (1989). Fields, 503 F.3d at 763. The Court of Appeals for the Ninth Circuit agreed, concluding, first, that the juror did not respond dishonestly on voir dire and did not intend to mislead the trial court when he used the word "assault" instead of "rape" and "kidnap" to describe what had happened to his wife. Id. at 767. To the extent the juror may have been mistaken in assuming that the words he used would make it apparent that his wife had also been raped, the Ninth Circuit concluded that this was "an honest mistake for a layperson to make." Id. The Ninth Circuit also concluded that there was no evidence the juror harbored "actual bias" and that the facts indicated the juror had remained impartial, notwithstanding what had happened to his wife. Id. at 767-68.
Finally, the Ninth Circuit found that the juror in question did not harbor implied bias. The court noted that the United States Supreme Court has never held that a juror was impliedly biased in the absence of juror dishonesty. Id. at 771. In addition, the Ninth Circuit has recognized that "it is an unresolved question whether dishonesty is a necessary predicate to a finding of juror bias." Id. The court in Fields also noted that the similarity of experiences involving the juror and the defendant was due to the juror's wife's experience, not his own. The court stated, "[a]lthough we have recognized that bias may be implied where close relatives of a juror "have been personally involved in a situation involving a similar fact pattern . . . we have never done so when the juror was honest on voir dire." Id. at 773. The Ninth Circuit concluded:
Given [the juror's] honest response on voir dire that revealed a potentially disqualifying relationship, but not an extreme or extraordinary one, and the results of the evidentiary hearing which disclosed no actual bias, we see no basis for inferring bias now as a matter of law.
d. Petitioner's Relationship with Juror No. 6
There is no evidence in this case that Juror No. 6 harbored actual bias, or "a state of mind that leads to an inference that the person will not act with entire impartiality." Gonzalez, 214 F.3d at 1112. Petitioner argues that Juror No. 6 withheld the fact that she recognized petitioner because she was afraid that "revelation of that information might thwart her desire to sit on petitioner's case." Traverse at 16. There is no evidence of that in the record and the court rejects this argument. Rather, petitioner's claim regarding the juror's failure to inform the trial judge that she recognized petitioner's face essentially involves McDonough - style bias, which turns on the truthfulness of the juror's responses on voir dire, and implied (or presumptive) bias resulting from petitioner's relationship, if any, with Juror No. 6.
After a review of the record, the court concludes that petitioner has failed to demonstrate that Juror No. 6 harbored implied bias. There is no evidence in the record that the juror responded dishonestly or intended to mislead the trial court when she stated on voir dire that she did not know petitioner. As she explained later, she recognized petitioner's face but she did not know him, had never spoken to him, and did not even know his name. The trial judge specifically mentioned that it was plain the juror did not know petitioner at the time she served on the jury. Under these circumstances, it was not unreasonable for Juror No. 6 to conclude that she could truthfully deny she knew the defendant in this case and that the mere fact she recognized his face was not important enough to disclose. Certainly, her answers on voir dire are not dishonest. In the absence of dishonesty, this court cannot find that Juror No. 6 harbored bias. McDonough, 464 U.S. at 556; Fields, 503 F.3d at 763. Nor did the nature of the relationship between petitioner and Juror No. 6 constitute a valid basis for a challenge for cause,*fn5 carry the "potential for substantial emotional involvement, adversely affecting impartiality," Tinsley, 895 F.2d 527, or make it "highly unlikely that the average person could remain impartial in his deliberations." Gonzalez, 214 F.3d at 1112. This simply is not the type of "extraordinary" case where bias may be implied or presumed.
In any event, as stated by the Ninth Circuit in Fields, "[t]o the extent that events or information bearing on [the juror's] honesty in voir dire or impartiality as a juror came after he was empaneled, the evidentiary hearing held by the district court afforded Fields an opportunity to show that [the juror] was not a fair and impartial juror." 503 F.3d at 773. The same is true here. The interview with Juror No. 6 did not reveal any impartiality or bias. See Dyer, 151 F.3d at 973 (observing that it follows from the holding in McDonough that "an honest yet mistaken answer to a voir dire question rarely amounts to a constitutional violation; even an intentionally dishonest answer is not fatal, so long as the falsehood does not bespeak a lack of impartiality"). There is no evidence before this court that the presence of Juror No. 6 on ...