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Passalacqua v. Gipson

United States District Court, C.D. California

September 30, 2014

JOSE PASSALACQUA, Petitioner,
v.
CONNIE GIPSON, WARDEN, Respondent.

ORDER ACCEPTING FINDINGS AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

ANDREW J. GUILFORD, District Judge.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition, records on file, and the Report and Recommendation of United States Magistrate Judge. Further, the Court has engaged in a de novo review of those portions of the Report to which Petitioner and Respondent have objected.

Petitioner's arguments regarding the resolution of his first claim for relief are sufficiently addressed in the Magistrate Judge's Report. Petitioner's arguments as to his other claims, however, warrant further discussion. Those arguments are addressed in turn below.

A. Claims Two and Three

Petitioner asserts that the Magistrate Judge erred in applying 28 U.S.C. § 2254(d) to Petitioner's second and third claims for relief because the state courts rejected neither claim on the merits. Instead, pursuant to the look through doctrine, the state courts rejected those claims because Petitioner could have raised them, but failed to raise them, on direct review. ( See Amended Petition, Exh. F.)

Petitioner is correct that the state courts did not reject either claim two or claim three on the merits. Nevertheless, neither claim warrants habeas relief because, even under de novo review, both claims fail.[1] As to the second claim for relief - that the trial court failed to adequately address allegations of juror misconduct - Petitioner cannot show that the trial court erred. The Supreme Court has held that the remedy for allegations of jury misconduct is a hearing in which the trial court determines the circumstances of what transpired, the impact on the jurors, and whether or not it was prejudicial. Smith v. Phillips, 455 U.S. 209, 216, 102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982) (citing Remmer v. United States, 347 U.S. 227, 229-30, 74 S.Ct. 450, 98 L.Ed. 654 (1954)). An evidentiary hearing, however, is not mandated every time there is an allegation of jury misconduct. See, e.g., Tracey v. Palmateer, 341 F.3d 1037, 1044-45 (9th Cir. 2003). Rather, in determining whether to hold a hearing into an allegation of juror misconduct, courts consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source. See Hard v. Burlington N.R.R., 812 F.2d 482, 485 (9th Cir. 1987).

Here, as set forth in the Report, the trial court called Petitioner's father, the person who witnessed the misconduct by the potential jurors, to testify about the misconduct that he had witnessed. When asked if any of the jurors whom he had witnessed engaging in misconduct were still seated on the panel, Petitioner's father without any equivocation informed the trial court that only two of the jurors whom he had witnessed discussing Petitioner's guilt remained on the panel. (Aug. RT at 178.) The trial court then questioned the jurors that Petitioner's father identified. After doing so, the trial court removed both jurors from the jury panel, even though one of the jurors denied engaging in any misconduct.[2] Although Petitioner asserts that the trial court should have conducted a more thorough hearing into the allegation of juror misconduct, he cites no viable reason why additional steps were necessary. Indeed, Petitioner's father unequivocally identified the only two jurors on the panel who had discussed Petitioner's guilt, and those jurors were removed. Given that fact, Petitioner simply cannot show that the hearing that the trial court conducted was in any way inadequate. Accordingly, even under de novo review, this claim does not entitle Petitioner to habeas relief.

As to Petitioner's third claim for relief - that the instruction regarding a possible second assailant deprived him of his right to a fair trial - habeas relief is unwarranted because the claim is meritless. Petitioner takes issues with the following instruction:

The evidence shows that another person may have been involved in the commission of the crimes charged against the defendant. There may be many reasons why someone who appears to have been involved might not be a co-defendant in this particular trial. You must not speculate about whether that other person has been or will be prosecuted. Your duty is to decide whether the defendant on trial here committed the crimes charged.

(RT 1561.) According to Petitioner, this instruction effectively told the jury that it could not consider Petitioner's defense that the victim had fabricated the second assailant.

Where a habeas claim rests on an alleged constitutional error arising from a jury instruction, the question is whether an alleged instructional error "by itself so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 70-71 (citing Cupp v. Naughten, 414 U.S. 141, 147, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). The challenged instruction "may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Cupp, 414 U.S. at 146-147. "If the charge as a whole is ambiguous, the question is whether there is a reasonable likelihood that the jury has applied the challenged instruction in a way that violates the Constitution." Middleton v. McNeil, 541 U.S. 433, 437, 124 S.Ct. 1830, 158 L.Ed.2d 701 (2004) ( per curiam ) (citations and internal quotation marks omitted). Moreover, even if instructional error is found to rise to the level of a constitutional violation under this standard, federal habeas relief is unavailable unless "the error, in the whole context of the particular case, had a substantial and injurious effect or influence on the jury's verdict." Calderon v. Coleman, 525 U.S. 141, 147, 119 S.Ct. 500, 142 L.Ed.2d 521 (1998) (citing Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993)).

Here, even under de novo review, there is no reason to believe that the jury applied the challenged instruction in a way that violated the Constitution. The instruction says nothing about whether the jury could consider Petitioner's defense that there was no second assailant. Indeed, the instruction does not even state that there was a second assailant; rather, it says that the evidence shows that there may have been a second assailant. That aspect of the instruction is altogether proper in light of the victim's testimony. And, the court's use of the word "may" carries the inherent - and equally reasonable - possibility that there may not have been a second assailant. In other words, the jury had to decide if there were a second assailant. It is equally clear that the portion of the instruction admonishing the jury not to consider whether the second assailant would or had been prosecuted was applicable only if the jury, in fact, believed that there was a second assailant. The balance of the instruction was directed at focusing the jury's deliberations on the critical matter at issue - whether or not Petitioner was guilty. Taken in context, there is simply no reason to believe that the jury understood the challenged instruction in the manner advanced by Petitioner.

Moreover, the Court notes that Petitioner's reading of the instruction is further undermined by defense counsel's closing argument, in which he explicitly and repeatedly argued that the evidence showed that the victim was lying about the existence of a second assailant. ( See, e.g., RT 1605 ("How did it get from being three Hispanics, to two, to one, to they, ' to him'? It doesn't make sense. It's a story. It is a story."); id. at 1608-09 ("But here's the problem with the story. The story is still they.' This story turns on evidence on there being two guys. There is no evidence in the photographs of two guys. There is no fingerprint evidence for you. There is no forensic evidence for you... There is no evidence for you, other than came from out of [the victim's] own words, and [the victim] demonstrably has told story after story after story.").) Indeed, defense counsel argued that the victim had fabricated nearly every aspect of her account of the rape because she regretted her consensual decision to pose for the erotic photographs found on Petitioner's camera. In light ...


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