The opinion of the court was delivered by: Marilyn L. Huff, District Judge United States District Court
PETITIONER'S PETITION FOR
WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2254
On August 31, 2011, Steve Harrington ("Petitioner"), a California state prisoner proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 challenging the constitutionality of his conviction for first degree residential burglary on the grounds that jury misconduct denied Petitioner due process and a fair trial. (Doc. No. 1 at 6.) On January 24, 2012, George Neotti ("Respondent") filed a response in opposition. (Doc. No. 7.) On March 6, 2012, Petitioner filed a traverse to the petition for writ of habeas corpus. (Doc. No. 9.) On July 25, 2012, the magistrate judge issued a report and recommendation to deny the petition. (Doc. No. 12.) On August 16, 2012, Petitioner filed an objection to the magistrate judge's report and recommendation. (Doc. No. 14.) For the following reasons, the Court denies petition for writ of habeas corpus.
The following facts are taken from the California Court of Appeals decision in People v. Harrington, No. D056964, 2011 WL 884007 (Cal. Ct. App. March 15, 2011). (Lodgment No. 6.) The facts are presumed to be correct pursuant to 28 U.S.C. § 2254(e)(1):
On October 24, 2008, someone kicked in the door of a residence, entered the home, rummaged through a few rooms and left with a backpack and numerous valuables. One of the home's occupants was present during the burglary. She ran to a neighbor's house and called the police. The police arrested Harrington nearby. Harrington had the backpack and the other stolen items in his possession. The pattern on the soles of his shoes matched the mark on the door that was kicked in.
PERTINENT PROCEDURAL BACKGROUND
Before the jury entered the courtroom on the second day of trial during the People's case, the deputy district attorney stated that "one of the jurors . . . appear[ed] to be sleeping through some of the testimony" and "was sleeping during my opening statement." The deputy district attorney concluded, "[a]nd I just have some concerns about him missing critical parts of witness testimony because of that . . . . Just thought it would be important to put that on the record in case it becomes a problem and he's missing much of the trial."
The court replied, "I did notice yesterday Juror Number 7 appeared to have his head down. And I couldn't tell for sure initially when I was looking at him whether his eyes were closed or not. He at some points appeared to be looking down at his notebook, and at other times did appear as if he might be sleeping. I did start to watch him. And there were times when I was watching him, he then would look up. So I actually couldn't tell for sure whether he was sleeping or not. [¶] But . . . I do agree with you there is that possibility. So I am happy to keep a very close eye on him again today, and certainly both sides can, too, as well."
The court asked the deputy district attorney and Harrington, who was representing himself, whether they wished the court to take any further action. Both said no. The court then asked Harrington, "You're in agreement we should just continue to watch him today and make sure that he's staying awake?" Harrington replied, "Yes, ma'am . . . . [E]very time I looked over there . . . he seemed awake to me. I haven't seen him . . . asleep or nothing of that nature . . . . He wasn't doing no more than what the rest of the jurors were doing . . . ."
When the jury reentered the courtroom, the court said, "I did want to make a comment to you all about the importance of staying awake during testimony. I know that sometimes that's difficult for some people, especially in the afternoon after you've had a nice big lunch. That can cause a problem to anyone under any circumstance. [¶] But I want to emphasize the importance of, obviously, I think it's obvious, staying awake and paying attention to the evidence. And if you feel yourself nodding off, sometimes I don't see it, I don't notice it, but you're the one that's going to notice if you're nodding off or somehow not getting to the point where you're paying attention, let me know. It's your obligation to let me know. And we'll take a break so you can take a stretch, get a cup of coffee."
Later that day, near the beginning of the court's instructions to the jury, the following occurred:
"THE COURT: [¶] . . . [¶] Juror Number 7, ...