The opinion of the court was delivered by: Terry J. Hatter, Jr. Senior United States District Judge
In 2003, Nunez was charged with one count of attempted premeditated murder, one count of discharge of a firearm from a motor vehicle, one count of assault with a firearm and one count of possession of a firearm by a felon.
Nunez was tried by jury in state court. The trial lasted 13 court days. The jury began its deliberations on the tenth court day. On the eleventh court day the jury deliberated until 1:55 p.m., whereupon the foreperson of the jury notified the court that the jury could not reach a verdict and that the jury did not believe that additional time would allow it to do so. The court asked the jury to persevere with its deliberation. The court emphasized the amount of time that had been invested in bringing the case to trial and opined that the jury had spent insufficient time in deliberation. The jury resumed deliberations.
At 3:30 p.m. that same day, the foreperson of the jury notified the court that the jury had made no progress in moving toward a unanimous decision. The foreperson reiterated that the jury did not believe it could reach a unanimous verdict and requested that it be discharged. Addressing the court, the foreperson expressed concern that continuation of the deliberation process would result in a decision based on a "group thing" or based on people "caving in" in order to end deliberations. The trial court, reiterating the amount of time that had been invested in the case, declined to discharge the jury and ordered the jury to return the following morning for further deliberation.
Before the jury retired for the evening, one of the jurors asked if he could be excused and replaced with an alternate juror on grounds of financial hardship. The trial court declined to release the juror, but said that if the jury was still deadlocked the next afternoon it would address the subject at that time. Addressing the jury, the trial court repeated for the third time that it did not believe that the amount of time that the jury had spent in deliberation was commensurate with the amount of time it had taken to bring the case to trial. The court emphasized that it was the jury's duty to reach a verdict, if it could. The court clarified that it was not saying that the jury had to return a verdict, but that it was the court's experience that the deliberation process took more time than it had been afforded in this case.
The following day, the twelfth court day, the jury continued its deliberations. During the course of the day, the jury requested a re-reading of two witnesses' testimony and asked whether the jury's findings on particular charges had to be unanimous. At 3:50 p.m. the jury indicated that it had reached a verdict. Before the verdict was returned, Nunez made a formal motion for mistrial based on the foreperson's expressed belief that the jury was hung and unable to reach a unanimous verdict on the charges. That motion was denied. The jury returned its verdict, finding Nunez guilty on all counts. Nunez was sentenced to a total term of 80 years to life.
In 2003, Nunez appealed his judgment to the California Court of Appeal on the grounds that the trial court, by declining to declare a mistrial, despite the jury foreperson's twice declared belief that the jury was unable to reach a verdict, and by the court's supplemental instructions to the jury urging them to persevere with their deliberations, coerced the jury into returning a verdict in violation of Nunez's constitutional rights under the Sixth and Fourteenth Amendments. In 2005, the Court of Appeal affirmed the trial court's judgment and sentence.
Nunez's petition for review was denied by the California Supreme Court in 2005.
On June 7, 2006, Nunez, proceeding pro se, filed a petition for writ of habeas corpus with this court.
Under section 2254 of the Antiterrorism and Effective Death Penalty Act ('AEDPA'), a habeas application shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless, inter alia, the adjudication of the claim 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." 28 U.S.C. § 2254.
In support of his petition for habeas corpus, Petitioner relies substantially on Cal. Penal Code § 1140 as well as California state court decisions. Under section 2254, however, Petitioner's habeas application can only be granted if the state appellate court's dismissal of his claim was contrary to, or involved an unreasonable application of, clearly established Federal law. Neither Cal. Penal Code § 1140 nor any of the California cases cited by Petitioner have a bearing on the determination of Petitioner's habeas application.
A trial court has authority to discharge a jury where, in its opinion, taking all of the circumstances of the case into account, there is a "manifest necessity for such an act, or the ends of public justice would otherwise be defeated." United States v. Escalante 637 F.2d 1197, 1202 (9th Cir. 1980). It is clear however, that the power to discharge should be used only with "the greatest caution, under urgent circumstances, and for very plain and obvious causes" (United States v. Gann, 732 F.2d 714, 725 (9th Cir. 1984)) and that a court should exercise sound discretion as to whether it is manifestly necessary to discharge the jury in any given case. Petitioner bears the burden of proving that there was an abuse of discretion. Gann, 732 F.2d 714 at 725 (denial of motion for mistrial not an abuse of discretion in the circumstances).
The Supreme Court has explicitly and repeatedly refused to delineate precisely the circumstances which would make it proper for a trial court to order a discharge of the jury. See, Illinois v. Somerville, 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed. 2d 425 (1973). It has been recognized however that 'manifest necessity' can arise where the jury cannot reach a verdict. United States v. Jefferson, 566 F.3d 928 (9th Cir. 2009). In determining whether a trial court has properly exercised its discretion to discharge the jury, a number of factors will be taken into consideration. These factors include: (1) A timely objection by defendant; (2) The jury's collective opinion that it cannot agree; (3) The length of deliberations of the jury; (4) The length of the trial; (5) The complexity of the issues presented to the jury; (6) Any proper communications which the judge had with the jury; and (7) The effects of possible exhaustion and the impact which coercion of further deliberations might have on the verdict. Arnold, 566 F.2d 1377, 1387 (9th Cir. 1978).
The Nunez trial court did not abuse its discretion when it declined to discharge the jury. Nunez has not established a "situation of great urgency where a mistrial should have been granted for very plain and obvious cause." Gann, 732 F.2d at 725. The trial judge specifically stated the length of time the jury had spent in deliberation and commented that the length of deliberation was "not commensurate with the amount of time it took to put on evidence in this case." The trial judge based this ...