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Rolando N. Gallego v. Mike Mcdonald


November 20, 2012


The opinion of the court was delivered by: James K. Singleton, Jr. United States District Judge


Rolando N. Gallego, a state prisoner appearing pro se, filed a Petition for a Writ of Habeas Corpus under 28 U.S.C. § 2254. Gallego is currently in the custody of the California Department of Corrections and Rehabilitation, incarcerated at the High Desert State Prison. Respondent has answered, and Gallego has replied.


Gallego was convicted by a Sacramento County jury of second degree murder (Cal. Penal Code § 187(a)) with a deadly weapon enhancement (Cal. Penal Code § 12022(b)(1)). In April 2009 the Sacramento County Superior Court sentenced Gallego to an indeterminate prison term of sixteen years to life. The California Court of Appeal, Third Appellate District, affirmed Gallego's conviction in a partially published and partially unreported decision,*fn1 and the California Supreme Court denied review on March 16, 2011. Gallego timely filed his Petition for relief in this Court on September 8, 2011. On March 23, 2012, Gallego, appearing pro se, filed an original petition for habeas relief in the California Supreme Court, which was summarily denied without opinion or citation to authority on June 13, 2012.*fn2

The facts underlying Gallego's conviction are well known to the parties and are unnecessary to a determination of the issues raised in his Petition. Therefore, they are not repeated herein.


In his Petition Gallego raises five grounds: (1) the use of scientific tests to determine his DNA constituted a violation of his Fourth Amendment search and seizure rights; (2) the trial could erred in (a) refusing to release juror information and (b) ordering the jury to continue deliberations after a second deadlock; (3) the trial court gave conflicting instructions on the evaluation and weight of hearsay evidence; (4) three evidentiary errors were individually and cumulatively prejudicial; and (5) the trial court erred in not applying sentencing statutes that were in effect at the time of Gallego's conviction.*fn3 Respondent asserts that Gallego's fourth ground, to the extent that it is based upon the trial court's refusal to allow the introduction of evidence that Gallego was willing to take a polygraph examination, is procedurally barred.*fn4


Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), this Court cannot grant relief unless the decision of the state court was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court renders its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn5 The Supreme Court has explained that "clearly established Federal law" in § 2254(d)(1) "refers to the holdings, as opposed to the dicta, of [the Supreme Court] as of the time of the relevant state-court decision."*fn6 The holding must also be intended to be binding upon the states; that is, the decision must be based upon constitutional grounds, not on the supervisory power of the Supreme Court over federal courts.*fn7

Thus, where holdings of the Supreme Court regarding the issue presented on habeas review are lacking, "it cannot be said that the state court 'unreasonabl[y] appli[ed] clearly established Federal law.'"*fn8 When a claim falls under the "unreasonable application" prong, a state court's application of Supreme Court precedent must be "objectively unreasonable," not just "incorrect or erroneous."*fn9 The Supreme Court has made clear that the objectively unreasonable standard is "a substantially higher threshold" than simply believing that the state-court determination was incorrect.*fn10 "[A]bsent a specific constitutional violation, federal habeas corpus review of trial error is limited to whether the error 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'"*fn11

In a federal habeas proceeding, the standard under which this Court must assess the prejudicial impact of constitutional error in a state court criminal trial is whether the error had a substantial and injurious effect or influence in determining the outcome.*fn12 Because state court judgments of conviction and sentence carry a presumption of finality and legality, the petitioner has the burden of showing by a preponderance of the evidence that he or she merits habeas relief.*fn13

The Supreme Court recently underscored the magnitude of the deference required:

As amended by AEDPA, § 2254(d) stops short of imposing a complete bar on federal court relitigation of claims already rejected in state proceedings. Cf. Felker v. Turpin, 518 U.S. 651, 664, 116 S.Ct. 2333, 135 L.Ed.2d 827 (1996) (discussing AEDPA's "modified res judicata rule" under § 2244). It preserves authority to issue the writ in cases where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with this Court's precedents. It goes no farther.

Section 2254(d) reflects the view that habeas corpus is a "guard against extreme malfunctions in the state criminal justice systems," not a substitute for ordinary error correction through appeal. Jackson v. Virginia, 443 U.S. 307, 332, n.5, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979) (Stevens, J., concurring in judgment). As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.*fn14

In applying this standard, this Court reviews the "last reasoned decision" by the state court.*fn15 State appellate court decisions that summarily affirm a lower court's opinion without explanation are presumed to have adopted the reasoning of the lower court.*fn16 This Court gives the presumed decision of the state court the same AEDPA deference that it would give a reasoned decision of the state court.*fn17

By failing to include them in his petition for review to the California Supreme Court, Gallego did not exhaust his third and fourth grounds on direct appeal;*fn18 however, he did raise them in his subsequent original habeas petition. Although the California Supreme Court could have denied the habeas petition for failing to raise those issues on direct appeal,*fn19 it did not.

Consequently, Gallego is not procedurally barred from bringing those claims before this Court.*fn20 Also, as Respondent notes, this Court may deny a habeas claim on the merits, the failure to exhaust notwithstanding.*fn21 Therefore, this Court will presume the California Supreme Court adopted the reasoning of the California Court of Appeal, the last decision that addressed the claims on the merits, and proceed to address the claims on the merits.


Ground 1: DNA Test Violated the Fourth Amendment

The detectives investigating the case surreptitiously obtained samples of Gallego's DNA by following him, then collecting a cigarette butt he had discarded on a public sidewalk. Gallego's DNA on the cigarette butt matched the male DNA obtained from a blood-stained towel found at the scene of the crime. As relevant to this proceeding, Gallego argues that the DNA testing of the cigarette butt violated his Fourth Amendment right to be free of unreasonable searches and seizures. The California Court of Appeal held in the published part of its decision that Gallego did not have a reasonable expectation of privacy in the DNA testing of the cigarette butt.*fn22

Gallego's Fourth Amendment argument is foreclosed by the Supreme Court decision in Stone.*fn23 Under the holding in Stone, "where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim," federal habeas corpus relief will not lie for a claim that evidence recovered through an illegal search or seizure was introduced at trial.*fn24 The Ninth Circuit has made it clear that all Stone requires is that the State provide a state prisoner a fair and full opportunity to litigate his Fourth Amendment claim.*fn25

"The relevant inquiry is whether petitioner had the opportunity to litigate his claim, not whether he did in fact do so or even whether the claim was correctly decided."*fn26

California law provides such an opportunity.*fn27

Gallego is not entitled to relief under his first ground.

Ground 2: Jury Related Errors

After the jury stated it was deadlocked for the second time late on the third day of deliberations, after declining to declare a mistrial and denying Gallego's request for juror information to show that juror misconduct had occurred, the trial court excused the jury until the following morning. Gallego contends that the trial court coerced a guilty verdict and abused its discretion in denying a defense petition for juror information to show juror misconduct that related to that coercion. The Court of Appeal disagreed.

As summarized by the California Court of Appeal in the unreported part of its decision, the facts underlying Gallego's contention are:

After 16 days of testimony and arguments, jurors began deliberating on the afternoon of February 11, 2009. The jurors next deliberated on February 17, all day, and had some testimony read back to them. On February 18, at noon, the jury stated it believed it was deadlocked. The foreperson reported an eight-to-four split. The trial court polled the jurors individually. Juror No. 5 expressed hesitancy about a deadlock, indicating that he/she wanted to confer with fellow jurors. The trial court directed the jury to continue deliberating, and the court gave a proper instruction that suggested ways to break impasses (a so-called "dynamite" instruction). (See People v. Gainer (1977) 19 Cal.3d 835, 842, 856; People v. Moore (2002) 96 Cal.App.4th 1105, 1118-1120.) The jury then deliberated for about two more hours that day.

After deliberating all day the next day, February 19, the jury informed the trial court at 4:00 p.m. that it was unable to reach a verdict. Upon inquiry, the foreperson did not think there was a reasonable probability that a verdict could be reached by deliberating further. However, the foreperson stated that the jury had taken only one additional ballot that day, after three previous ballots.

When the trial court asked for the numerical breakdown of the last ballot, the foreperson replied "nine [to] three," but two unidentified jurors said "No." The following exchange between the foreperson and the trial court then occurred:

"THE COURT: Nine to three? Okay. So it sound like it's news to the rest of the jury.

"JUROR NO. ELEVEN [Foreperson]: We took a vote. Somebody said to me afterward, said they wanted to change their vote, so it was nine [to] three.

"COURT: Okay. When did that occur in terms of your coming into this courtroom?

"JUROR NO. ELEVEN: In the hallway just now. "THE COURT: Just now. Okay. Then it sounds like, to me-not to be critical-but it sounds like to me that there is some movement, because you said that there's not. And then just now, coming into court, someone told you that they were changing their vote, which I don't want to judge how you're conducting your deliberations, but . . . because of your statement to me, I think there may be some movement. At least I don't feel I want to do anything other than send you back to deliberate."

The trial court directed the jury to resume deliberations the next morning; and denied [Gallego's] request to poll the jurors individually because the record indicated what had happened.

After resuming deliberations for three hours the next day (Friday, February 20), the jury requested that the following testimony be read back to it: Detective Lauther's complete first testimony; defense expert Harmor's testimony on validation regarding the new type of human blood test he had used; and testimony from three relatives regarding loans (Tony and Priscila Concepcion, and Primitiva Madayag).

And after deliberating for about two more full days, including the readback of the requested testimony, the jury reached its verdict.

Subsequently, [Gallego] petitioned for the release of jurors' names, addresses and phone numbers based on the reported hallway conversation between the foreperson and another juror. Apparently, the trial court never expressly ruled on that petition, but also never notified the jurors, as it said it would do, if it had granted the petition.*fn28


Taking first the coercion claim. In rejecting it, the California Court of Appeal in the unreported part of its decision held:

A "[trial] court may ask jurors to continue deliberating where, in the exercise of its discretion, it finds a 'reasonable probability' of agreement. [Citations.] Any claim that [a] jury was pressured into reaching a verdict depends on the particular circumstances of the case." (People v. Pride (1992) 3 Cal.4th 195, 265, fn. omitted; § 1140.) "The court must exercise its power, however, without coercion of the jury, so as to avoid displacing the jury's independent judgment 'in favor of considerations of compromise and expediency.'" (People v. Rodriguez (1986) 42 Cal.3d 730, 775 (Rodriguez).)

Here, the trial was long (16 days of testimony and argument), the case was close, and the most contested issue (the source of the blood on the towel) involved extensive expert testimony. The jury had deliberated for only two full days, which included the readback of testimony from two witnesses, when it "believe[d]" it was first deadlocked at eight to four. And at this point, one of the jurors indicated equivocation and a desire to confer with fellow jurors.

The jury reached its second impasse after only a little more than one full day of additional deliberation. At this point, the foreperson indicated movement in the vote total, to nine to three, because one juror had expressed a change of vote, to the foreperson, upon the jury's filing into the courtroom for the deadlock inquiry.

None of the trial court's comments to the jury was coercive.

Most significantly, after the second deadlock, the jury requested the readback of testimony from five witnesses (not previously requested), and specifically identified the testimony from these witnesses that it was interest[ed] in.

The circumstances of this case are similar to those in Rodriguez, supra, 42 Cal.3d 730, in which our state high court found no jury coercion. As Rodriguez concluded: "Here the trial had been long, the evidence voluminous, and the issues complex. . . . Under the circumstances, the trial judge could reasonably conclude that his direction of further deliberations would be perceived as a means of enabling the jurors to enhance their understanding of the case rather than as mere pressure to reach a verdict on the basis of matters already discussed and considered. [Citation.] Subsequent events bore out that conclusion, for on the next three days following the jury's final statement of deadlock, it requested, and was read, five portions of testimony that had not previously been read to it during deliberations. Thus, the deliberations remained 'properly focused on the evidence' [rather than indicating coercion]." (Id. at pp. 775-776.)

As noted, quite similar circumstances are presented here. In fact, the present case can be contrasted with those decisions identified in Rodriguez in which coercion was found; in those decision[s], "the trials had been relatively short and the issues relatively simple, so that further deliberations seemed unnecessary for purposes of enabling the jury to understand the evidence and could only be deemed intended to coerce the minority into joining the majority jurors' views of the case." (Rodriguez, supra, 42 Cal.3d at p. 775, citing People v. Crossland (1960) 182 Cal.App.2d 117, 119 and People v. Crowley (1950) 101 Cal.App.2d 71, 75; see also Jiminez v. Myers (9th Cir. 1993) 40 F.3d 976 [relied upon by defendant in a case where coercion was found; however, at issue in Jiminez was only whether the defendant acted with intent to kill when he fired a gun through a door, and both parties conceded it was the kind of case where further deliberations would not be helpful when deadlock occurred-see Rodriguez v. Marshall (9th Cir. 1997) 125 F.3d 739, 750-751 [distinguishing Jiminez in this fashion], disapproved on different grounds in Payton v. Woodford (9th Cir. 2003) 346 F.3d 1204, 1218, fn. 18.) [Gallego] argues that coercion is shown by the following circumstances: (1) the dynamite instruction given after the first deadlock proved ineffective in preventing the second; (2) the trial court ignored the two unidentified dissident jurors who had said "no" to the question of whether movement in the jury voting had occurred; (3) the trial court approved of secret voting by jurors if such voting indicated movement by minority jurors; (4) the trial court did not want to know why the juror who changed his or her vote in the hallway was unable to do so in front of the other jurors; and (5) the court did not limit the length of resumed deliberations.

We take these five circumstances in order. First, the jury, in this complex case, had deliberated only a little over one full day after being given the dynamite instruction before coming to the second impasse. Arguably, the fuse of that instruction was still burning at that point. Second, the trial court did not ignore the two dissident jurors-they expressed their dissent that the vote tally had moved from eight to four to nine to three before the foreperson had a chance to explain that trek. Third, the trial court did not approve of secret voting; it was interested only determining if movement had in fact occurred. Fourth, the hallway/vote-changing juror would have to face the music (i.e., his or her fellow jurors) upon return to the deliberation room. And, fifth, the jury had not deliberated for very long (a little over three full days, which included extensive readback of testimony) in this complex, close, technical case before reaching the second deadlock; the trial court's failure to set a time limit for further deliberations proved wise given the extensive readback of additional testimony the jury requested after the second impasse.

Under the particular circumstances of this case, we conclude the trial court did not coerce the jury into reaching its verdict.*fn29

To the extent that Gallego argues that the trial court violated California law, that argument is beyond the purview of this Court.*fn30 It is a fundamental precept of dual federalism that the states possess primary authority for defining and enforcing the criminal law.*fn31 "[A] state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus."*fn32 A determination of state law by a state intermediate appellate court is also binding in a federal habeas action.*fn33 This is especially true where, as here, the highest court in the state has denied review of the lower court's decision.*fn34

Clearly established constitutional law provides that "[a]ny criminal defendant . . . being tried by a jury is entitled to the uncoerced verdict of that body."*fn35 Likewise, it is clearly established that efforts of a trial judge to encourage a deadlocked jury to try to reach a verdict are not per se coercive.*fn36 However, when faced with a claim of jury coercion, a reviewing court must "consider the supplemental charge given by the trial court 'in its context and under all the circumstances.'"*fn37 "Compliance with Lowenfield . . . does not demand a formulary statement that the trial court's actions and inactions were non-coercive 'individually and collectively.""*fn38

Furthermore, clearly established Supreme Court law on the subject of jury coercion in the constitutional context is sparse, consisting solely of Lowenfield.*fn39 The rule in Lowenfield is a general one, broad in scope. As the Supreme Court has held: A state court's determination that a claim lacks merit precludes federal habeas relief so long as "fairminded jurists could disagree" on the correctness of the state court's decision. Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). And as this Court has explained, "[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Ibid. "[I]t is not an unreasonable application of clearly established Federal law for a state court to decline to apply a specific legal rule that has not been squarely established by this Court." Knowles v. Mirzayance, 556 U.S. --------, --------, 129 S.Ct. 1411, 1413--14, 173 L.Ed.2d 251 (2009) (internal quotation marks omitted).*fn40

Applying these principles, this Court rejects Gallego's position. Although Gallego challenges the circumstances following the giving of the "dynamite" instruction, not the propriety of giving the charge per se, the principles underlying the propriety of giving the "dynamite" charge nonetheless governs the outcome. Adhering to the guidance in Lowenfield, this Court must determine if (1) the California Court of Appeal looked at the totality of the circumstances in determining whether the actions by the trial court were coercive and (2) if its determination that it was not was objectively unreasonable.*fn41 As long as the California Court of Appeal reviewed all the facts and circumstances, and considered the supplemental charge, the trial court's post-charge actions in context in holding that it was not coercive, then, in the absence of Supreme Court authority to the contrary, this Court must give deference to the California Court of Appeal's judgment.*fn42

Generally, in reviewing whether a jury has been coerced the court weighs four factors:

(1) the form of the jury charge given, (2) the amount of time of deliberation following the charge,

(3) the total time of deliberation and, (4) other indicia of coerciveness or pressure.*fn43 As he did on direct appeal, Gallego's argument focuses on the fourth element:

On the second occasion that the jury deadlocked, the defense request that the jurors be individually examined was denied, even though two unidentified jurors had protested the accuracy of the foreperson's representations. The defense also moved for a mistrial. Thus, the defense objected to the trial court directing further deliberations. The trial court's sole justification for ordering further deliberations after a second declaration of a deadlock was its perception that the split had changed from 8-4 to 9-3 after the giving of the firecracker instruction, such that the jury was moving toward consensus. See 1 ORT 2893-99. However, during the inquiry of the foreperson, the trial court was given indications that the change in vote was a surprise to most of the jurors. If that was true, then the trial court's justification for ordering resumption of deliberations after the second deadlock was without justification.*fn44

As the California Court of Appeal explained in addressing Gallego's contentions on direct appeal, after the "objections" the trial court inquired further of the foreperson who explained that the vote change occurred in the hallway. Thus, it cannot be said that the trial court ignored the "objections" or that the trial court was unjustified in finding movement. Applying Richter-Renico to the rule in Lowenfield, under all of the facts and circumstances in this case this Court cannot say that the decision of California Court of Appeal rejecting Gallego's jury coercion claim was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" at the time the state court rendered its decision or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."*fn45

Failure to Release Jurors' Information

The California Court of Appeal rejected Gallego's arguments on the failure to release the jurors' names, addresses and phone numbers as well.

[Gallego] contends the trial court abused its discretion in denying his petition for the release of the jurors' names, addresses and phone numbers. This petition was based on the reported hallway conversation, set forth above, between the jury foreperson and the juror who changed his or her vote just after the second deadlock. [Gallego] claims this conversation evidenced juror misconduct (i.e., discussing the case outside the presence of the other jurors), and the release of this information would have assisted him in making his coercion argument. We find no abuse of discretion.

Assuming [Gallego] has not forfeited this contention by failing to obtain an express ruling on his petition (as noted previously at p. 19, ante), we reject the contention on its merits.

As implied above, a trial court's denial of a petition for disclosure of juror identifying information is reviewed for abuse of discretion. (Townsel v. Superior Court (1999) 20 Cal.4th 1084, 1094, 1096.) A defendant is entitled to juror identifying information only if he "sets forth a sufficient showing to support a reasonable belief [(1)] that jury misconduct occurred, [(2)] that diligent efforts were made to contact the jurors through other means, and [(3)] that further investigation is necessary to provide the court with adequate information to rule on a motion for new trial." (People v. Rhodes (1989) 212 Cal.App.3d 541, 552; People v. Carrasco (2008) 163 Cal.App.4th 978, 990; Code Civ. Proc., §§ 237, subd. (a)(2), 206, subd. (g).)

[Gallego's] claim is most prominently tripped up by factor (3). As the People persuasively argue, "absent some reason to believe that the verdict was influenced by the reported hallway communication [and no such reason was ever posited, because the circumstances show that only a vote change was uttered in the hallway rather than any substantive discussion of issues, and the jurors subsequently resumed deliberations that were focused on the evidence and that confronted the vote-changing juror], the trial court already had all the information it needed to evaluate the alleged juror misconduct based on the comments of the foreperson. . . . Moreover, since none of the other jurors were privy to the conversation, giving [Gallego] identifying information on those jurors would have invited a 'fishing expedition' by defense counsel hoping to upset the verdict."

[Gallego] counters by noting that the "burning question in this case is why the unidentified juror who whispered a vote change to the foreperson in the hallway was unable to convey his or her vote in the presence of the remaining jurors. . . . [This showed] a reasonable likelihood that the jury contained a biased member." As just alluded to, however, the hallway/vote changing juror had to face his or her fellow jurors when the trial court directed the jury to continue deliberating (after this hallway remark was reported). And facing those other jurors, this juror had to explain the vote change to them; this was done, moreover, in a crucible which showed the jury was focused on the evidence (requesting an extensive readback of testimony from five significant witnesses).

Combining these reasons with those set forth in the previous subheading (Coercion), we also conclude the trial court did not abuse its discretion in denying the petition for juror identifying information to help with [Gallego's] coercion argument.*fn46

The error complained of is based upon matters that occurred during jury deliberations. There is no allegation that the jury, or any juror, was influenced by an external factor. Nor, is there any allegation or evidence that the jury's verdict was the result of any prosecutorial misconduct. The decision of the California Court of Appeal not only was not contrary to established federal law as determined by the Supreme Court, it was consistent with it. Under Federal law, the inquiry into the validity of a verdict is severely circumscribed.

Inquiry into validity of verdict or indictment.-Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury's attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.*fn47

"Federal Rule of Evidence 606(b) is grounded in the common-law rule against admission of jury testimony to impeach a verdict and the exception for juror testimony relating to extraneous influences."*fn48 As the Supreme Court has noted:

By the beginning of this century, if not earlier, the near-universal and firmly established common-law rule in the United States flatly prohibited the admission of juror testimony to impeach a jury verdict. See 8 J. Wigmore, Evidence § 2352, pp. 696-697 (J. McNaughton rev. ed. 1961) (common-law rule, originating from 1785 opinion of Lord Mansfield, "came to receive in the United States an adherence almost unquestioned").

Exceptions to the common-law rule were recognized only in situations in which an "extraneous influence," Mattox v. United States, 146 U.S. 140, 149, 13 S.Ct. 50, 53, 36 L.Ed. 917 (1892), was alleged to have affected the jury. In Mattox, this Court held admissible the testimony of jurors describing how they heard and read prejudicial information not admitted into evidence. The Court allowed juror testimony on influence by outsiders in Parker v. Gladden, 385 U.S. 363, 365, 87 S.Ct. 468, 470, 17 L.Ed.2d 420 (1966) (bailiff's comments on defendant), and Remmer v. United States, 347 U.S. 227, 228-230, 74 S.Ct. 450, 450-452, 98 L.Ed. 654 (1954) (bribe offered to juror). See also Smith v. Phillips, 455 U.S. 209, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (juror in criminal trial had submitted an application for employment at the District Attorney's office). In situations that did not fall into this exception for external influence, however, the Court adhered to the common-law rule against admitting juror testimony to impeach a verdict. McDonald v. Pless, 238 U.S. 264, 35 S.Ct. 783, 59 L.Ed. 1300 (1915); Hyde v. United States, 225 U.S. 347, 384, 32 S.Ct. 793, 808, 56 L.Ed. 1114 (1912).*fn49

In this case, Gallego does not allege any external influence. The Supreme Court has never held that the refusal of a trial court to permit inquiry into the jury's deliberative process violated a criminal defendant's rights to a jury trial under the Sixth Amendment. Indeed, because the Federal Rules of Evidence, which are adopted by the Supreme Court,*fn50 preclude consideration of a juror's mental processes, any assumption that the Supreme Court did is counter-intuitive. Any rights that Gallego had on this issue arose under California state law,*fn51 which differs substantially from federal law. That is, although it is permissible to challenge a jury verdict on the basis of internal factors under California law, it is impermissible under federal law. As a right created by state law, whether the state courts properly interpreted or applied that law is beyond the purview of this Court in a federal habeas proceeding.*fn52 "[The Supreme Court has] long recognized that a mere error of state law is not a denial of due process."*fn53

"Federal courts hold no supervisory authority over state judicial proceedings and may intervene only to correct wrongs of constitutional dimension."*fn54 Gallegos has failed to present a question of constitutional dimension, and is, therefore, not entitled to relief under his second ground.

Ground 3: Jury Instructions

This ground involves Gallego's unrecorded allegedly false statement made to a detective that he was at work on the night that the murder allegedly occurred. Gallegos argues that the trial court gave two conflicting instructions concerning this statement. The California Court of Appeal rejected Gallego's argument.

The first instruction was CALCRIM No. 358, stating: "You have heard evidence that the defendant made oral statements before the trial. You must decide whether or not the defendant made any of those statements in whole or in part. If you decide that the defendant made such statements, consider the statements along with all of the other evidence in reaching your verdict. It is up to you to decide how much importance to give such statements. [¶] Consider with caution any statement made by the defendant tending to show his guilt unless it was written or otherwise recorded.

The second instruction was from CALCRIM No. 362, modified to include a reference to the alleged statement to Detectiver Lauter. The instruction read: "If you find that the defendant made a false or misleading statement relating to the charged crime, to wit: to Detective Lauther, regarding having been at work, knowing the statement was false or intending to mislead, that conduct may show he was aware of his guilt of the crime and you may consider it in determining his guilt. [¶] If you conclude that the defendant made the statement, it is up to you to decide its meaning and importance. However, evidence that the defendant made such a statement cannot prove guilt by itself."

[Gallego argues that a reasonable juror would have understood the first instruction to be a general statement of the law, and the second to be a specific statement of how the law should apply to the facts of this case; such an understanding, [Gallego] asserts, deprived him of the benefit of the first instruction's "consider with caution" admonition.

In evaluating purportedly ambiguous instructions, we ask whether there was a "reasonable likelihood" the jury misunderstood or misapplied the instructions. (People v. Clair (1992) 2 Cal.4th 629, 662-663.) We do not think so here.

In considering the instructions as a whole, as the jury was also instructed to do, the jury would have concluded that the first instruction applied to all unrecorded, oral statements made by [Gallego] -- including his statement to Detective Lauther regarding having been at work on the night of August 29, 1991.*fn55

A challenged instruction violates the federal constitution if there is a "reasonable likelihood that the jury has applied the challenged instruction in a way that prevents the consideration of constitutionally relevant evidence."*fn56 The question is whether the instruction, when read in the context of the jury charges as a whole, is sufficiently erroneous to violate the Fourteenth Amendment.*fn57

This Court must also assume in the absence of evidence to the contrary that the jury followed those instructions.*fn58 As the Supreme Court has stated:

We normally presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an "overwhelming probability" that the jury will be unable to follow the court's instructions, Richardson v. Marsh, 481 U.S. 200, 208, 107 S.Ct., 1702, ----, 95 L.Ed.2d 176 (1987), and a strong likelihood that the effect of the evidence would be "devastating" to the defendant, Bruton v. United States, 391 U.S. 123, 136, 88 S.Ct. 1620, 1628, 20 L.Ed.2d 476 (1968).*fn59

It is well established that not only must the challenged instruction be erroneous but it must violate some constitutional right and may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record.*fn60 This Court must also bear in mind that the Supreme Court has admonished that the inquiry is whether there is a reasonable likelihood that the jury applied the challenged instruction in a way that violates the constitution and that the category of infractions that violate "fundamental fairness" is very narrowly drawn.*fn61 "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process clause has limited operation."*fn62

It is clear that the California Court of Appeal applied the appropriate standard. Under the circumstances present in this case, this Court cannot say that in applying that standard to the challenged instructions in this case the California Court of Appeal was not only not erroneous, but also not objectively unreasonable.*fn63 Gallego is not entitled to relief under his third ground.

Ground 4: Evidentiary Rulings

Gallego challenges three evidentiary rulings: (1) an alleged improper application of the "state-of-mind" exception for the introduction of hearsay evidence; (2) the introduction of the victim's alleged appointment book without a proper foundation;*fn64 and (3) exclusion of evidence that Gallego was willing to take a polygraph examination. Gallego further argues that the evidentiary errors, even if not individually prejudicial, are prejudicial when considered cumulatively. The California Court of Appeal disagreed.

"State-of-mind" Hearsay Exception

Gallego contends that the trial court erroneously allowed the prosecution, over his objection, to elicit evidence of conversations between a detective and a hearsay declarant under a "state of mind" exception. The California Court of Appeal rejected Gallego's argument: First, [Gallego] claims the trial court erroneously admitted a hearsay statement from his employer to Detective Lauther under the "state of mind" hearsay exception. [Gallego] is mistaken. During the prosecution's case, Detective Lauther testified that after [Gallego] told him he was at work (on the night of August 29, 1991), Lauther asked the employer if [Gallego] was at work that night; Lauther "receive[d] a response" from the employer, and decided to contact [Gallego] again. When the prosecutor asked Lauther "why" he had decided to do so, defense counsel unsuccessfully objected on "relevance" grounds.

This evidence was not admitted for the truth of the employer's response, but only to show why Lauther decided to contact [Gallego] again; the jury was so instructed (and immediately after this, Lauther testified that he contacted [Gallego] again because [Gallego] said he was at work and the employer said not so).

Consequently, the employer's statement was not offered for the hearsay purpose of the truth of the matter stated; the "state of mind" hearsay exception therefore did not apply. (Evid. Code, § 1250.) In any event, the defense objected to this statement on grounds of "relevance" rather than hearsay. (See Evid. Code, § 353 [to preserve review, specific ground of objection must be stated].).*fn65

The Supreme Court has acknowledged its "traditional reluctance to impose constitutional restraints on ordinary evidentiary rulings by state trial courts."*fn66 "The introduction of unfairly prejudicial evidence against a defendant in a criminal trial . . . does not amount to a violation of due process unless the evidence is so extremely unfair that its admission violates fundamental conceptions of justice."*fn67 "[T]he Due Process Clause does not permit the federal courts to engage in a finely tuned review of the wisdom of state evidentiary rules."*fn68 In criminal actions, "[t]he States are free to provide such procedures as they choose, including rules of evidence, provided that none of them infringes a guarantee in the Federal Constitution."*fn69 The Supreme Court has made clear that federal habeas power does not allow granting relief on the basis of a belief that the state trial court incorrectly interpreted the state evidence code in ruling on the admissibility of evidence.*fn70

No court, let alone the United States Supreme Court, has ever held that the hearsay rule was mandated by the Constitution of the United States other than to the extent it violated the confrontation clause of the Sixth Amendment. Gallego's reliance on Crawford is misplaced as the Supreme Court specifically noted that the Confrontation Clause "does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted."*fn71

The jury was properly instructed on the restrictions on the use of the testimony. This Court assumes that the jury followed those instructions.*fn72 Gallego is not entitled to relief on this basis. Exclusion of Willingness to take a Polygraph Examination Gallegos also contends that the trial court erred in not allowing him to enter evidence that he had offered to take a polygraph examination in 1991 to rebut evidence that he had lied to detective Lauther. The California Court of Appeal rejected Gallego's arguments:

Second, [Gallego] contends that the trial court violated due process by refusing to allow evidence that he had offered to take a polygraph examination in 1991, to rebut the prosecution's evidence of consciousness of guilt (i.e., [Gallego's] supposed lie to Detective Lauther).

[Gallego] has forfeited this contention by agreeing at trial with the prosecution and the trial court that he could present evidence of his cooperation with the police, but not offers to take a polygraph examination (Evid. Code § 351.1, subd.

(a) [precluding such polygraph evidence]).*fn73

Respondent contends that Gallego is procedurally barred from bring this claim. This Court agrees. A federal habeas court will not review a claim rejected by a state court "if the decision of [the state] court rests on a ground that is independent of the federal question and adequate to support the judgment."*fn74 "The state-law claim may be a substantive rule dispositive of the case, or a procedural barrier to adjudication of the claim on the merits."*fn75 Procedural default does not preclude federal habeas review unless the last state court rendering judgment in a case, clearly and expressly states that its judgment rests on a state procedural bar.*fn76 "[I]n order to constitute adequate and independent grounds sufficient to support a finding of procedural default, a state rule must be clear, consistently applied, and well established at the time of the petitioner's purported default."*fn77 A discretionary state procedural rule can be firmly established and regularly followed, so as to bar federal habeas review, even if the appropriate exercise of discretion may permit consideration of a federal claim in some cases but not others.*fn78

Although the ultimate burden of proving adequacy of a state procedural bar is on the Respondent, once Respondent has "adequately pled the existence of an independent and adequate state procedural ground as an affirmative defense, the burden to place that defense in issue shifts to the petitioner."*fn79

Gallego may satisfy his burden "by asserting specific factual allegations that demonstrate the inadequacy of the state procedure, including citation to authority demonstrating inconsistent application of the rule."*fn80 In his Traverse, Gallego did not address the procedural default issue. Consequently, Gallego has not shouldered that burden.

Because Gallego's claims were defaulted in state court on an adequate and independent state ground, they will not be considered in federal habeas proceedings unless Gallego can demonstrate cause for the default and actual prejudice, i.e., a miscarriage of justice.*fn81 To prove a fundamental miscarriage of justice, Gallago must show that a constitutional violation probably resulted in his conviction despite his actual innocence.*fn82 Although at the gateway stage the petitioner need not establish his innocence as an "absolute certainty," Gallego must demonstrate that more likely than not, no reasonable juror could find him guilty beyond a reasonable doubt.*fn83

If a petitioner has procedurally defaulted on a claim, a federal court may nonetheless consider the claim if he shows: (1) good cause for his failure to exhaust the claim; and (2) prejudice from the purported constitutional violation; or (3) demonstrates that not hearing the claim would result in a "fundamental miscarriage of justice." Coleman, 501 U.S. at 750, 111 S.Ct. 2546; Sawyer v. Whitley, 505 U.S. 333, 339--40, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). An objective factor outside of a petitioner's control (e.g., ineffective assistance of counsel or a basis for the claim that was previously unavailable) could constitute cause. Murray v. Carrier, 477 U.S. 478, 488, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); McCleskey v. Zant, 499 U.S. 467, 497, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). The petitioner can meet the prejudice prong if he demonstrates "that the errors . . . worked to his actual and substantial disadvantage, infecting his entire [proceeding] with errors of constitutional dimension." White v. Lewis, 874 F.2d 599, 603 (9th Cir.1989) (citing United States v. Frady, 456 U.S. 152, 170, 102 S.Ct. 1584, 71 L.Ed.2d 816 (1982)). A petitioner can demonstrate a fundamental miscarriage of justice by "establish[ing] that under the probative evidence he has a colorable claim of factual innocence." Sawyer, 505 U.S. at 339, 112 S.Ct. 2514 (quotation marks omitted).*fn84

Because Gallego did not address the issue in his Traverse, it is manifestly clear that he has not cleared the "factual innocence" hurdle either. Even if the Court were to reach Gallego's claim on the merits, he would not prevail. Although there is pre-AEDPA circuit authority to support his position,*fn85 the Supreme Court has declined to hold that a criminal defendant has a constitutional right to take a polygraph test or, if administered, to have the results of a polygraph test admitted into evidence.*fn86 Gallego is not entitled to relief under his fourth ground.


Gallego is not entitled to relief on any ground raised in his Petition.

IT IS THEREFORE ORDERED THAT the Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus is DENIED.

IT IS FURTHER ORDERED THAT the Court declines to issue a Certificate of Appealability.*fn87 Any further request for a Certificate of Appealability must be addressed to the Court of Appeals.*fn88

The Clerk of the Court is to enter judgment accordingly.

James K. Singleton, Jr.

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