Petitioner is a state prisoner proceeding through counsel with an application for writ of habeas corpus under 28 U.S.C. § 2254. He challenges a 2006 judgment of conviction entered against him in the Solano County Superior Court on charges of second degree robbery (Cal. Penal Code § 211), assault by force likely to produce great bodily injury (Cal. Penal Code § 245(a)(1)), and an enhancement for personal infliction of great bodily injury (Cal. Penal Code § 12022.7(a)). The parties have consented to the magistrate judge's jurisdiction under 28 U.S.C. § 636(c). The matter has been fully briefed by the parties.*fn1 Below, the court will summarize the factual and procedural background of the case and address each of petitioner's claims for federal habeas relief.
PROCEDURAL AND FACTUAL BACKGROUND
On appeal in state court, petitioner argued that the evidence introduced at his trial was insufficient to support his conviction on all of the charges against him and that his right to a fair trial was violated by jury misconduct. (Answer, Ex. 1; Clerk's Transcript on Appeal (hereinafter CT), 248.) The California Court of Appeal for the First Appellate District affirmed the judgment of conviction on June 25, 2008. (Answer, Ex. 4.) The state appellate court's opinion on direct appeal provides the following factual summary of the case:
On September 16, 2003, at about 5:30 in the afternoon, Keith Vershay was driving along Pintail Drive in Suisan City, on his way home from his work at Travis Air Force Base. Because of the heat he had lowered the vehicle's windows on both sides. An African-American male stepped in front of the vehicle, and Vershay "slammed on the brakes." The man approached the vehicle, leaned through the open front passenger window, and made some remark as if accusing Vershay of trying to hit him. Vershay told the man he should "stay out of the road." The man then "took a jab" at Vershay. At that same moment Vershay felt a pain in the back of his head and "blacked out."
Other witnesses testified that several young adult African-American males converged on the driver side of the stopped vehicle, pulled Vershay out onto the street, and began beating and kicking Vershay's face and head. Two witnesses, attempting to intervene, began shouting at the males, who then ran off.
Vershay's injuries, in addition to surface lacerations, bruising, and a swollen eye, included seven facial fractures and two breaks in his lower jaw. Because of the fractures both cheekbones were "caved in." The injuries required some four hours of surgery to set and wire his jaw and restore the cheekbones to their proper position. Ultimately Vershay was left with scarring and a loss of muscle control in lower right side of his face.
Vershay testified that his basketball shoes had been taken. Another witness stated that he saw one of the attackers remove something from a wallet he had taken from Vershay's clothing, and toss the wallet onto the street before running from the scene.
An information filed January 6, 2004, charged defendant as one of those who had attacked Vershay. It alleged a felony violation of section 211 (second degree robbery), and a felony violation of section 245, subdivision (a)(1) (assault by means of force likely to produce great bodily injury). The information also included an enhancement allegation under section 12022.7, subdivision (a), to the effect that defendant personally inflicted great bodily injury in his commission of the robbery and assault. On January 12, 2004, defendant entered a plea of not guilty.
Defendant's jury trial commenced over two years later, in March 2006. On March 20, 2006, the jury returned a verdict that found defendant guilty of both counts and found true the enhancement allegation.
Defendant filed a motion for new trial on May 3, 2006, on the ground of juror misconduct. At the sentencing hearing, held on June 13, 2006, the trial court denied defendant's motion. The court went on to impose an upper term of five years imprisonment for defendant's conviction under section 211 and a consecutive term of three years based on the enhancement allegation under section 12022.7. The court stayed imposition of sentence for defendant's conviction under section 245, pursuant to section 654.*fn2 Defendant filed a notice of appeal the following day. (§ 1237, subd .(a).)
On August 9, 2007, petitioner filed a petition for writ of habeas corpus in the California Court of Appeal for the First Appellate District, claiming that his trial attorney had rendered ineffective assistance. (Answer, Ex. 5.) That court denied the petition in a reasoned decision dated June 26, 2008. (Answer, Ex. 6.) Petitioner also filed two petitions for review in the California Supreme Court, both of which were summarily denied. (Answer, Ex. 7.)
Standards of Review Applicable to Habeas Corpus Claims A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See 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)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).
This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the 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.
See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision meets one of the criteria set forth in § 2254(d), the federal court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").
The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). See also Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005) ("When more than one state court has adjudicated a claim, we analyze the last reasoned decision"). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). If 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 § 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, AEDPA's deferential standard does not apply, and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).
Petitioner seeks federal habeas relief from this court on the following grounds:
(1) his right to a fair trial and impartial jury was violated when some of the jurors discussed petitioner's decision not to testify in his own defense and when one of the jurors discussed his own professional law enforcement experience with photographic lineups;*fn3 (2) the evidence introduced at his trial was insufficient to support petitioner's conviction on the charges against him; (3) the trial court's imposition of the upper term sentence violated petitioner's right to a jury trial; and (4) petitioner's trial counsel rendered ineffective assistance.
Petitioner claims that his federal constitutional rights were
violated by two
instances of juror misconduct. First, petitioner claims that the
deliberating jurors discussed his decision not to testify in his own
defense, in violation of a jury instruction that they were not
to consider petitioner's failure to testify. (Pet. at 8.)*fn4
Petitioner contends this was prejudicial misconduct that
violated his right to a "fair, impartial jury guaranteed by the Sixth
and Fourteenth Amendments." (Id.) In the second instance, petitioner
claims that one of the jurors, a former police officer, discussed his
personal experience with photographic lineups. (Id. at 10.) Petitioner
argues that this too was improper and violated his rights to "a fair,
impartial jury, to confront witnesses against him, and to due
The California Court of Appeal rejected petitioner's claims of juror misconduct, which he asserted on direct appeal from his conviction. The state court reasoned as follows:
Following the jury's verdict in March 2006, defendant moved for a new trial on the ground of jury misconduct. (See § 1181, subd.
(3).) He contended the jury, during deliberations, had improperly considered his failure to testify, despite the court's instruction to the contrary. He also urged that the statements reportedly made by one juror showed not only personal bias against himself but also disclosed an improper discussion of extraneous information relating to the prosecution's eyewitness identification evidence. Defendant here challenges the trial court's denial of that motion. . . . We consider first whether jury misconduct actually occurred. In doing so we accept the trial court's credibility determinations and findings on questions of historical fact if supported by substantial evidence. (People v. Majors (1998) 18 Cal.4th 385, 417 (Majors).) If we conclude misconduct did occur, we review independently whether defendant suffered prejudice as a result. (Ibid.)
In support of his motion, defendant submitted the declaration of Juror B. The trial court held admissible Juror B's statements that another juror had, during deliberations, "asserted that if [defendant] was innocent he would have testified in his own behalf," that "other jurors reminded the group they were not allowed to consider this in their deliberations," that the "matter came up several times and it appeared that some of the jurors could not discuss the absence of an alibi without bringing up the failure of the defendant to testify," and that "again the discussion moved to the lack of an alibi presented by the defense and the failure of [defendant] to testify in his own defense." The court further admitted averments by Juror B to the effect that Juror S told the others that "his experience as a law enforcement officer [had] led him to the conclusion that if a witness is viewing a '6 pack' and says 'I think I recognize this one,' that is as good an identification as you should expect," whereas "if somebody says, 'That's him, I'm positive,' you should suspect that identification as it may be the witness trying to lay blame on somebody rather than the perpetrator."
In opposition to the motion, the prosecution submitted a declaration executed by Juror S. The trial court admitted averments by this juror to the effect that he "[did] not recall any discussion regarding the defendant's failure to testify," that he suggested "an evidentiary pro/con list," which he subsequently recorded but as to which he made no substantive contribution, and that "[d]efendant's failure to testify was not on the pro/con list." The trial court held that the admitted statements of Juror S did not directly refute those of Juror B, thus finding the averments summarized above to be essentially undisputed.
2. The Remarks of Juror S Concerning the Photographic Lineup Identifications Defendant contends the trial court erred in concluding that the statements of Juror S concerning the photographic lineup testimony did not constitute misconduct. He urges that in making these comments, Juror S improperly "functioned as an unsworn expert witness" providing "specialized information" contrary to the testimony of his own expert witness, and that the opinion expressed by Juror S served to "turn[ ] the weakness of the [prosecution's] identifications into a strength." In defendant's view the comments were prejudicial because they effectively undermined "the heart of [his] defense" -- that is, the "uncertainty of the photo-identifications made by Vershay and Samuels." Defendant argues the prejudicial effect of the comments is further demonstrated by the length of time the jury deliberated in relation to the length of the trial itself,*fn5 and by the jury's written request during deliberations to "review the officer's reports in which [Vershay's] and [Samuels' initial responses to the six-pack lineup is recorded -- the exact quotes, [please]."*fn6
We note that a juror, "regardless of his or her educational or employment background, [may properly] express an opinion on a technical subject, so long as the opinion is based on the evidence at trial . . . . [But a] juror should not discuss an opinion explicitly based on specialized information obtained from outside sources." (In re Malone (1996) 12 Cal.4th 935, 963.) The injection into jury deliberations of "external information . . . or specialized knowledge of a matter at issue is misconduct." ( Ibid.)
Here it does not appear that Juror S made any explicit assertion of expertise in the area of eyewitness identifications, nor any explicit claim that his conclusions were based on outside sources of specialized knowledge he had acquired by virtue of his law enforcement training. According to Juror B, Juror S claimed only to have drawn his conclusions from his law enforcement "experience." Nor do we find the conclusions of Juror S to be necessarily contrary to the evidence presented during trial, so much as a permissible interpretation of that evidence. (See People v. Steele (2002) 27 Cal.4th 1230, 1266.) Recognizing that a "fine line" exists between a juror's permissible use of his or her background to analyze evidence, and a juror's expression of an opinion based explicitly on specialized information obtained from outside sources, we nevertheless are not persuaded, on the basis of the admitted averments, that Juror S improperly crossed that line in this instance. (Ibid.) We conclude there was no misconduct, and thus do not reach the issues defendant has raised concerning prejudice.
3. The Discussion of Defendant's Failure to Testify
Defendant argues that, while the trial court was correct in concluding that the jury's discussion of his failure to testify was misconduct, it erred in concluding that the misconduct was not prejudicial. He reasons that it was prejudicial because the initial comment reportedly made by one juror -- that "if [defendant] was innocent he would have testified in his own behalf" -- drew an improper inference. Moreover, the jury's repeated discussion of the issue demonstrated a movement on the part of some jurors to disobey the court's instructions, which was not dispelled by the admonition given at one point by other jurors, to the effect that they were not to consider defendant's failure to testify.
The Attorney General concedes that the discussion of defendant's failure to testify constituted jury misconduct. The trial court instructed the jury not to consider or discuss that fact, and the failure of the jurors to follow that instruction was misconduct.
(See CAL CRIM No. 355; In re Hamilton (1999) 20 Cal.4th 273, 305 .) Hence we focus on an independent review of the issue of prejudice. (Majors, supra, 18 Cal.4th at p. 417.)
Jury misconduct raises a rebuttal presumption of prejudice. (People v. Holloway (1990) 50 Cal.3d 1098, 1108.) The presumption may be rebutted, inter alia, by a reviewing court's determination, upon examination of the entire record, that there is no substantial likelihood the complaining party suffered actual harm. (People v. Hardy (1992) 2 Cal.4th 86, 174.)
Here the relevant extra-judicial evidence admitted by the trial court consists of averments made by only two of the twelve jurors. One, Juror B, reported that during deliberations another juror voiced an impermissible inference -- that is, that defendant would have testified "if [he] was innocent" -- and also that the fact of defendant's failure to testify came up several times. However, Juror B also reported that she and other jurors reminded the jury as a whole that it was not permitted to consider defendant's failure to testify. In addition, Juror S did not recall any discussion of defendant's failure to testify, a fact indicating that the discussions that did occur were neither lengthy nor significant. (Cf. People v. Hord (1993) 15 Cal. App.4th 711, 728.) Moreover, it appears from Juror S's admitted averments that the jury compiled a "pro/con" list -- in effect a list of those factors the jury explicitly considered in determining defendant's guilt -- and that this list did not include the fact of defendant's failure to testify.
These circumstances do not in our view disclose a substantial likelihood that defendant suffered actual harm. Juror B's declaration, that another juror stated during deliberations that Mr. Coleman would have testified "if [he] was innocent," is an after-- the--fact statement of the other juror's subjective mental processes and thus inadmissible to impeach the verdict. (Evid. Code, § 1150.) This juror's expression of a personal opinion that an innocent person should profess his innocence is the type of statement that does not, without speculation, imply that the juror believed Mr. Coleman was automatically guilty. There is no indication of how this juror's personal opinion about how one should behave influenced his decision regarding Mr. Coleman. "'Where the alleged misconduct is entirely speculative in nature, it is settled that the denial of a constitutional right resulting in essential unfairness must be established as a demonstrable reality, not as a matter of speculation.' [Citation.]" ( People v. Hood, supra, 15 Cal. App.4th at p. 725.)
We conclude the challenged misconduct was not prejudicial, and find no clear abuse of discretion in the trial court's denial of defendant's motion for a new trial on this ground. (See Delgado, supra, 5 Cal.4th at p. 328.)
(Answer, Ex. 4 at 10-14.)
Under the Sixth Amendment, a criminal defendant has the right to be tried by an impartial jury and to confront and cross-examine the witnesses who testify against him. See Irvin v. Dowd, 366 U.S. 717, 722 (1961); Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). In reviewing a claim of juror misconduct, "[t]he test is whether or not the misconduct has prejudiced the defendant to the extent that he has not received a fair trial." United States v. Klee, 494 F.2d 394, 396 (9th Cir. 1974). See also Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th Cir. 1993) (question on habeas review is whether juror misconduct deprived defendant of his or her right to fair trial). "To obtain relief, petitioners must now show that the alleged error 'had substantial and injurious effect or influence in determining the jury's verdict.'" Id. at 1190 (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)); Fields v. Brown, 431 F.3d 1186, 1209 n.16 (9th Cir. 2005) (Brecht provides the standard of review for harmless error in cases involving unconstitutional juror misconduct).
1. Jurors' Comments on Petitioner's Failure to Testify
A defendant in a criminal case is entitled to a jury that reaches a verdict on the basis of evidence produced at trial. Turner v. Louisiana, 379 U.S. 466 (1965); Estrada v. Scribner, 512 F.3d 1227, 1238 (9th Cir. 2008); Raley v. Ylst, 470 F.3d 792, 803 (9th Cir. 2006). "Evidence not presented at trial, acquired through out-of-court experiments or otherwise, is deemed 'extrinsic.'" United States v. Navarro-Garcia, 926 F.2d 818, 821 (9th Cir. 1991) (citing Marino v. Vasquez, 812 F.2d 499, 504 (9th Cir. 1987)). When the jury considers extraneous or extrinsic facts not introduced in evidence, a defendant has effectively lost his Sixth Amendment rights of confrontation, cross-examination, and the assistance of counsel with regard to jury consideration of the extraneous evidence. Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995). A petitioner's failure to testify in his own defense is not extrinsic evidence because that fact is apparent from the trial itself and is not obtained from outside sources. Raley, 470 F.3d at 803 (citing United States v. Rodriquez, 116 F.3d 1225, 1226-27 (8th Cir. 1997)). Therefore, as a general rule, a jury's discussion of a defendant's failure to testify does not violate Sixth Amendment because it does not involve the receipt of extrinsic evidence. Id. That rule applies here. Although the jury may have violated the trial court's instructions, "what happened (or did not happen) in the courtroom was a part of the trial, not extrinsic to it." Raley, 470 F.3d at 803. Petitioner is therefore not entitled to relief on this claim because it concerns only intrinsic jury processes. Id. (denying federal habeas relief based upon claim that petitioner's jury during its deliberations discussed his decision not to testify); United States v. Rutherford, 371 F.3d 634, 639-640 (9th Cir. 2004) (finding testimony regarding a jury's consideration of the defendant's failure to testify to "not concern facts bearing on extraneous or outside influences on the deliberation").
The court also notes that Fed. R. Evid. 606(b)(2) limits a federal court's ability to consider a juror's statement regarding the validity of a verdict to "extraneous prejudicial information . . . improperly brought to the jury's attention;" "outside influence . . . improperly brought to bear upon any juror;" or "a mistake . . . in entering the verdict onto the verdict form." This rule applies to federal habeas corpus actions. Fed. R. Evid. 1101(e); Capps v. Sullivan, 921 F.2d 260, 262 (10th Cir. 1990) (Rule 606(b) applies to federal habeas proceedings). Testimony regarding the jury's consideration of a defendant's failure to testify does not qualify under any of those exceptions. Rutherford, 371 F.3d at 639-640. Therefore, the post-verdict juror affidavits submitted by petitioner in support of his jury misconduct claim cannot be considered by this court in analyzing that claim.
Even if this court were able to consider the juror affidavits submitted by petitioner in support of this claim, he would still not be entitled to federal habeas relief. The state appellate court concluded that the jurors at petitioner's trial committed misconduct by discussing petitioner's failure to testify in his own defense but that the misconduct was harmless, for three reasons. First, the state court found that while one juror stated petitioner would have testified if he was innocent, and the subject of petitioner's failure to testify came up several more times during the jury's deliberations, Juror B and other jurors reminded the jury as a whole that they were not allowed to consider this factor in reaching their verdict. Second, Juror S did not recall any discussion of petitioner's failure to testify, which indicated that any such discussions were not lengthy or significant. Third, the "pro/con list" assembled by the jury during their deliberations did not include any item related to petitioner's failure to testify, indicating that the subject did not influence the jury's verdict. (Answer, Ex. 4 at 13.)
"When a state court has found a constitutional error to be harmless beyond a reasonable doubt, a federal court may not grant habeas relief unless the state court's determination is objectively unreasonable." Towery v. Schriro, 622 F.3d 300, 304 (9th Cir. 2010). None of the California Court of Appeal's determinations of harmless error with respect to petitioner's allegations of juror misconduct was objectively unreasonable. It appears that any reference to petitioner's failure to testify did not influence all of the jurors and was so insignificant that it did not merit mention on the list of factors that led the jury in reaching their verdict. Accordingly, petitioner is not entitled to federal habeas relief on this claim.
2. Juror's Reliance on and Espousal of Specialized Knowledge Petitioner also alleges Juror S committed misconduct when during jury deliberations he inserted his personal experience as a law enforcement officer as a basis on which to consider the reliability of lineup identifications evidence. In some instances, a juror's injection of his personal experiences into the deliberations may constitute improper extrinsic evidence. United States v. Navarro-Garcia, 926 F.2d 818, 821-822 (9th Cir. 1991). "This is the case when a juror has personal knowledge regarding the parties or the issues involved in the litigation that might affect the verdict." Id. at 821. The introduction of prejudicial extraneous influences into the jury room constitutes misconduct that may result in the reversal of a conviction. Parker v. Gladden, 385 U.S. 363, 364-65 (1966).
However, it is not improper for a juror to bring his or her outside experiences to bear during deliberations. A constitutional violation only arises "if the jury considers a juror's past personal experiences in the absence of any record evidence on a given fact, as personal experiences are relevant only for purposes of interpreting the record evidence." Navarro-Garcia, 926 F.2d at 822. Although jurors naturally bring their own experiences to a case, they may not "decide a case based on personal knowledge of facts specific to the litigation." Mancuso v. Olivarez, 292 F.3d 939, 950 (9th Cir. 2002).
Following a verdict a juror may testify on the question of whether extraneous prejudicial information was improperly brought to the jury's attention. Fed. R. Evid. 606(b)(2)(A). Therefore this court may consider the declarations of Jurors B and S insofar as they address Juror S's discussion of his own experience as a law enforcement officer and its pertinence to the reliability of the witnesses' trial testimony.*fn7
The California Court of Appeal determined that Juror S did not commit misconduct in expressing his opinion jury deliberations about the reliability of the pre-trial photographic lineup identification procedure because he did not tell the other jurors he had expertise in the subject or that his opinion was based on "outside sources of specialized knowledge he had acquired by virtue of his law enforcement training." (Answer, Ex. 4 at 12.) The state appellate court instead found Juror S's opinion involved a permissible interpretation of the trial evidence and was based only on his personal experience. (Id.) This was not an unreasonable application of the law against injecting extrinsic evidence into a jury deliberation.
In Grotemeyer v. Hickman, 393 F.3d 871, 878 (9th Cir. 2004), the Ninth Circuit found it was not improper for the jury foreperson, a physician, to express her opinion that the defendant's mental illness caused him to commit the crime and that he would receive adequate mental health care in prison. The court stated that it knew of no Supreme Court case "holding that such conduct amounts to violation of [petitioner's] right to confrontation, of his right to an impartial jury, or of any other constitutional right . . . . The mere fact that the jury foreperson brought her experience to bear on the case is not sufficient to make her alleged statements [a violation of the] constitutional right to confrontation." Id. at 878. The court went on to state that "[w]e have said in obiter dicta and now hold, that 'a juror's past personal experiences may be an appropriate part of the jury's deliberations.'" Id. at 879 (quoting Navarro-Garcia, 926 F.2d at 821).
Petitioner's allegation of Juror S's misconduct is not appreciably different from the deliberations the Ninth Circuit found to be harmless in Grotemeyer. There is no evidence or allegation that Juror S claimed he knew anything about the specific facts of the case. Instead, it is suggested by another juror that Juror S related how his experience as a law enforcement officer influenced his own interpretation of the reliability of the victim's and witness' lineup identifications. As the Ninth Circuit in Grotemeyer made clear, it is not only allowable but expected that a juror's own experiences will have such an influence. "Evaluation of credibility necessarily relies on experience." 393 F.3d at 879. Nor is it of any moment that anybody else took Juror S's opinion into account, if anybody did. "Ideally, at least someone on a jury of twelve will be able to contribute to the rest of the jury some useful understanding about whatever evidence comes up." Id. at 880. There is no evidence that Juror S's mention of his own experience with lineup identifications contributed to any "useful understanding" within the jury room: his declaration does not specifically refute the allegation that he discussed his experience as a law enforcement officer in deliberations, but there is also no indication it influenced any other juror's decision.
Petitioner has not shown that the state court unreasonably applied clearly established federal law in rejecting this aspect of his jury misconduct argument. See 28 U.S.C. § 2254(d)(1). Therefore, he has not established ...