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Konolus I. Smith v. J.W. Haviland

July 26, 2011




Petitioner Smith, a state prisoner, proceeds pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner stands convicted of corporal injury to a spouse and making criminal threats in the El Dorado County Superior Court, case number S07CRF0275, for which he is currently serving two concurrent indeterminate prison sentences of 25 years to life.


Petitioner and the victim, P., had been married for 15 years at the time of the offenses. P. testified that theirs "was not the best of relationships." In August 2007, P. consulteda divorce attorney. Dissolution proceedings were underway at the time of trial.

On August 28, 2007, the two argued and discussed a divorce. Petitioner appeared to agree to the idea of a divorce.

Sometime during that night, P. awoke from bed when she heard noises in the kitchen. She saw petitioner going from room to room. He came back into the bedroom, straddled her, held scissors over her, and said, "Tonight's the night you're going to die, bitch." Petitioner touched the scissor blades to her eyelids and throat. He forced her to swallow various pills, including Benadryl, Advil, and Ibuprofen. He warned her that he would stab her once for every pill she spit out. He added that he would stab her if she made any noise or tried to get away. He threatened to throw hot grease on her face, so she could "[s]ee if [her] boyfriend would like [her] then." Petitioner bound P.'s feet and hands with a wool scarf and a belt from a bathrobe.

At some point petitioner dragged P. into the hallway bathroom, where he continued to force pills down her throat. He said he would tell her family that she had committed suicide because she was upset about her affair. P. eventually lost consciousness and woke up in a hospital.

Petitioner told the emergency room nurse that P. had possibly overdosed on Tylenol PM. He told an El Dorado County Sheriff's Deputy that he saw her take one-half of a "blue pill" at 10:00 p.m. before they both went to bed, and that he found P. on the bathroom floor around 8:00 a.m. the following morning next to three pill bottles.

When P. regained consciousness, she was in the intensive care unit. A nurse told her she was in the hospital because she had tried to commit suicide. P. summoned the police and explained that petitioner had tried to kill her by forcing her to swallow medication. Various injuries were observed on her, including an injury on her neck and bruises on her wrists.

P. was released from the hospital the next day. Following a pretext phone call, petitioner told her, "I fucked up. I fucked up all the way." He also apologized to her and said, "Sorry. Ain't no words."

Petitioner was charged with attempted murder (count I), false imprisonment (count II), infliction of corporal injury on a spouse (count III), and threatening to commit a crime that would result in death or great bodily injury (count IV). A jury convicted him of counts III and IV; for reasons that will be discussed herein, the trial court declared a mistrial on counts I and II. Petitioner admitted that he had incurred two prior serious felonies alleged for sentence enhancement purposes. The court imposed a sentence of two concurrent indeterminate terms of 25 years to life.

The California Court of Appeal, Third District, affirmed the judgment and sentence. A petition for review to the California Supreme Court was denied.


The petition sets forth four distinct grounds for relief. Each will be separately set forth and discussed herein.*fn2

Ground One: The trial court's denial of the defense's motion to dismiss Juror No. 6 for alleged bias deprived petitioner of his constitutional rights;

Ground Two: Misconduct by Juror No. 6 during deliberations further deprived petitioner of his constitutional rights;

Ground Three: Irregularities in the taking of the verdicts and the trial court's coercion of one juror rendered the verdicts received incomplete and not unanimous, and

Ground Four: The trial court abused its discretion in denying petitioner's motion to dismiss one of his prior serious felony convictions at sentencing.


An application for writ of habeas corpus by a person in custody under judgment of a state court can be granted only for violations of the Constitution or laws of the United States. 28 U.S.C. §2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). This petition for writ of habeas corpus was filed after the effective date of, and thus is subject to, the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Lindh v. Murphy, 521 U.S. 320, 326 (1997); see also Weaver v. Thompson, 197 F.3d 359 (9th Cir. 1999). Under AEDPA, federal habeas corpus relief also 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. 28 U.S.C. § 2254(d); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001).

This court looks to the last reasoned state court decision in determining whether the law applied to a particular claim by the state courts was contrary to the law set forth in the cases of the United States Supreme Court or whether an unreasonable application of such law has occurred. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002), cert. dismissed, 538 U.S. 919. The state court's factual findings are presumed correct if they are not rebutted with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Taylor v. Maddox, 336 F.3d 992, 1000 (9th Cir. 2004). It is the habeas corpus petitioner's burden to show the state court's decision was either contrary to or an unreasonable application of federal law. Woodford v. Visciotti, 537 U.S. 19, 123 S. Ct. 357, 360 (2002).


A. Ground One: Juror Bias and the Trial Court's Denial of the Motion to Discharge Juror No. 6 Petitioner claims that the trial court erred in violation of his rights under the Sixth Amendment and the Due Process Clause when it denied his motion to dismiss Juror No. 6, whom he claims intentionally concealed material information during jury voir dire.

During voir dire, before Juror No. 6 was called into the juror box, the trial court asked jurors in the panel several questions, specifying that the questions were for those "on the panel right now -- I'm talking about these 18 people. I'd like the rest of you to listen to these questions." (Second Augmented Reporter's Transcript of Proceedings ("2 Aug. RT") at 7.) The court asked "Of the people in the panel right now, have any of you read or heard anything about this case, either through the radio or Internet or the local newspaper of going down to the coffee shop and talking to people and overhearing what's going on?" (2 Aug. RT at 10-11.) Two jurors indicated they had read about the case in the paper; in response to further questioning, they said they could put aside what they had read. No one reported being acquainted with petitioner.

Later that day, Juror No. 6 was called into the jury box. Juror No. 6 introduced himself: "I have three children, grown. I'm retired New York City police Lieutenant. My wife is a retired teacher. I've lived here for five years, and they never let me serve on [a] jury." (2 Aug. RT at 72-73.) Subsequently, the court stated to all jurors in the box:

I'm going to assume all the newcomers have heard all the questions of all the people. Anyone in that new batch who has any problem? Any kind of red flag goes up, or anything you think I should know or Mr. Smith should know about you, outside the fact we have a retired lieutenant [from the] police department.

(2 Aug. RT at 76.) Juror No. 6 did not bring anything to the court's attention. Defense counsel asked the group "Have any of you read the paper about this particular case?" There was no affirmative response. Jury selection concluded shortly thereafter, with Juror No. 6 seated on the jury. The jury was sworn in at 3:35 p.m. Opening statements were heard after which the jury was excused for the day.

First thing the next morning, proceedings resumed in chambers with counsel, petitioner, and Juror No. 6. The following discussion took place:

THE COURT: ...[Juror No. 6], it came to my attention that you told someone on the staff that you and your wife know the victim in this case? [JUROR NO. 6]: I do not personally. My daughter Kathleen and Evan lived about two doors, three doors away from this gentleman. [ΒΆ] They had two little boys about ...

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