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Dang v. McEwan

United States District Court, S.D. California

March 2, 2015

NGHIEM DANG, Petitioner,
L. S. McEWAN, Warden, Respondent.



Nghiem Dang (hereinafter "Petitioner"), is a California prisoner proceeding pro se with a Petition for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 1.) He alleges here, as he did in state court, that his state and federal Constitutional rights were violated due to an inadequate inquiry into possible juror bias (Claim 1), ineffective assistance of trial counsel for pursuing an untenable defense (Claim 2), failure to give a unanimity jury instruction (Claim 3), and because he is actually innocent (Claim 4). (Pet. at 6-9; Memo. P&A Supp. Pet. ["Pet. Mem."] at 23-49.)[1] United States Magistrate Judge Karen S. Crawford has filed a Report and Recommendation ("R&R") which recommends the Petition be denied because: (1) the state court's adjudication of Claims 1-3, with the exception of the ineffective assistance of counsel and the cumulative error aspects of Claim 1, is neither contrary to, nor involves an unreasonable application of, clearly established federal law; (2) Petitioner has not demonstrated cumulative error with respect to Claim 1 nor shown he was prejudiced by counsel's actions, and (3) the actual innocence claim (Claim 4) is not cognizable on federal habeas. (ECF No. 23.)

Petitioner has filed Objections to the R&R, specifically with respect to Claim 1 but without conceding his other claims, and requests a Certificate of Appealability. (ECF No. 27.) After the Objections were filed, the Court found that Respondent had misread the record with respect to the Juror No. 15 aspect of Claim 1, that the R&R had erroneously relied on that misreading, and directed Respondent to amend the Answer. (ECF No. 31.) Respondent filed an Amended Answer and Petitioner filed an amended Traverse. (ECF Nos. 38-40.)

The Court has reviewed the R&R and the Objections thereto pursuant to 28 U.S.C. § 636(b)(1), which provides that: "A judge of the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made. A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1).

1. Claim 1

Petitioner alleges in Claim 1 that his state and federal constitutional rights to a jury composed of unbiased and impartial jurors, and to a trial judge, defense counsel and appellate counsel vigilant in protecting those rights, were violated, individually or cumulatively, because: (1) an inquiry was not made after Juror Nos. 3 and 12 openly displayed and voiced "their frustrations/animosity towards the trial process, " and after Juror No. 15 indicated she possibly recognized the victim's father; (2) Juror 4 was allowed to remain as a juror even though she recognized and was familiar with nearly all of the prosecution's peace officer witnesses and failed to disclose that knowledge on voir dire; and (3) those claims, other than the Juror No. 12 aspect, were not raised on appeal. (Pet. Mem. at 23-30.) Petitioner requests here, as he did in state court, that he be provided with a complete transcript of the voir dire proceedings in order to fully and fairly develop the factual basis of Claim 1.[2] (Id. at 30-31.)

Respondent argues that the state appellate court's reasoned opinion denying the Juror No. 12 aspect of Claim 1 is consistent with clearly established federal law. (Ans. Mem. at 10-12.) Respondent contends that Petitioner cannot establish that the state supreme court's silent denial of the remaining aspects of Claim 1 involved an objectively unreasonable application of clearly established federal law, because: (1) Juror No. 3's actions did not evince bias or trigger a need to inquire; (2) the trial court conducted an adequate inquiry when it came to the court's attention that Juror No. 4 recognized several peace officers on the witness list; and (3) Juror No. 15 was dismissed during voir dire and was not on the empaneled jury. (Id. at 12-15.)

The Magistrate Judge found that the state court's adjudication of Claim 1, other than the cumulative error and ineffective assistance of counsel aspects, was neither contrary to, nor involved an unreasonable application of, clearly established federal law, because no inquiry was necessary regarding Juror Nos. 3, 4 and 15, as there was nothing to indicate bias, and the injury of Juror No. 12 was adequate and revealed no bias. (R&R at 7-14.) The Magistrate Judge found that Petitioner did not demonstrate a federal due process violation with respect to cumulative error because there were no jury errors to accumulate, and did not demonstrate ineffective assistance of counsel because "there was no failure by the trial court or petitioner's counsel to take appropriate action with respect to potential bias as to Juror Nos. 3, 4, 12, and 15, since there is nothing to suggest actual prejudice could be shown." (Id. at 14.)

Petitioner objects, arguing that the R&R "minimizes and overlooks facts, allegations, and argument, " including Juror No. 15's acquaintance with the victim's father, the trial judge's sharply worded comments regarding the frustration and animosity exhibited by the jurors, Juror No. 1's dismissal for drinking alcohol during a lunch break, the expressions of open animosity and disdain by Juror Nos. 3 and 12, and Juror No. 4's acquaintance with nearly all of the prosecution's peace officer witnesses and her lack of truthfulness on voir dire in that regard. (Obj. at 1-6.) He objects to the failure of the R&R to address his ineffective assistance of counsel claims, which allege trial counsel should have insisted on questioning the jurors, and appellate counsel should have raised these claims on appeal. (Id. at 1-3, 6.)

a) Juror No. 12

After the close of trial testimony, and just prior to jury instruction and closing argument, the jurors were in the hallway outside the courtroom waiting to be brought in; they had been told to be present at 9:30 a.m., and at 9:45 a.m. the court clerk informed them that it would be another 15 minutes before the court was ready. (Lodgment No. 9, People v. Dang, No. D053687, slip op. at 13-14 (Cal.App.Ct. July 14, 2010).) The clerk reported to the court that Juror No. 12 had asked the clerk at that time, "are they doing anything productive in the courtroom?", which most of the other jurors overheard. (Id. at 14.) The trial judge and the attorneys were discussing jury instructions, and, without having called the jury in, decided at 11:21 a.m. to excuse the jury until 1:00 p.m. (Lodgment No. 1, Clerk's Tr. ["CT"] at 660.) The clerk went into the hallway about 11:30 a.m. and told the jury they were excused until 1:00 p.m., at which time Juror No. 12 made a comment to the clerk, which was "probably heard by at least some of the other jurors, " that "he was rather upset or perplexed about how three highly-educated individuals, meaning the [trial judge, prosecutor and defense counsel], could be so incompetent." (Lodgment No. 9, People v. Dang, No. D053687, slip op. at 14.) The trial judge informed the attorneys of Juror No. 12's comments, and said: "it's been pretty apparent from his demeanor during the trial that he thinks this is a waste of time and he has better things to do." (Id.) The judge then stated:

So I just wanted you to be advised. I'm not suggesting - I suppose that comes as any surprise that jurors could be in that frame of mind now, but he was the one who verbalized that. So I don't know what, if anything, you suggest we do about that at this point. I want you to be advised so you have that information.

(Lodgment No. 2, Reporter's Tr. ["RT"] at 7209.) No party asked for an inquiry.

To place those comments in context, and to address Petitioner's contention that the trial judge repeatedly warned the attorneys they were trying the patience of the jurors, it is necessary to briefly review the record regarding the trial delays. The trial judge told the jurors to expect the trial to last about 8-10 days (RT 3269-70), but it lasted 25 days. (CT 625-63.) Jury voir dire began on April 8 and took three days; evidence was presented on 10 court days from April 11 to April 30, with 4 dark court days; the comments at issue were made May 1, and the verdicts were returned May 2. (Id.) The trial judge made several comments during trial regarding how the jurors were reacting to the trial delays. On April 25, the seventh day of testimony and 18 days after jury selection began, the trial judge told the attorneys:

I don't know if you guys care, but you're driving this jury crazy. Geez, I think they think we don't know what the hell we're doing here. That's not helpful to anybody to have the jury figure these people don't know what they're doing. They're making things up as we go along. It's not helpful for the process.

(RT 6466.)

Later that day, in connection to Juror No. 5's request to be excused due to her employer's refusal to continue paying her, the trial judge told the attorneys:

Remember, she told us he was going only to be paid for 10 days. And I think we, ah - probably at the time reasonably thought it was not going to be a problem. Or that she might have to see if she could prevail upon the bank to pay her for maybe one extra day. [¶] Today is her last day to be paid, she advised the bailiff, and the bank had indicated that's it. They apparently are disgusted with the way the court has been proceeding. They think we're wasting time down here, so they're not willing to pay her any extra.

(RT 6502.)

On the last day of testimony, April 30, the trial judge told the attorneys:

All right. So everybody's on notice, I think I have implicitly, and on a couple of instances explicitly, made it clear to you that I think we're getting repetitious. We're getting cumulative and sort of trivializing the process here. And you are trying the patience of the court, and I believe my perception of the jury is that you're also trying the patience of the jury.

(RT 7098.)

Petitioner alleges that: (1) his due process and jury trial rights were violated by the failure of the trial court to conduct a hearing regarding Juror No. 12's comments in order determine the extent of any bias, or whether the impartiality of the other jurors was affected by the comments; (2) his trial counsel was ineffective for failing to request or insist on such a hearing, and (3) his appellate counsel was ineffective for failing to raise those claims on appeal. (Pet. Mem. at 23-27, 30.)

The last reasoned opinion of the state court with respect to the trial court's failure to conduct an inquiry into Juror No. 12's comments, to which this Court must apply the standards of 28 U.S.C. § 2254(d), is the appellate court opinion on direct appeal. That court found that an inquiry was not necessary into Juror No. 12's comments because they merely evinced a "negative attitude toward the progress of the trial, " and "likely reflected a degree of impatience and, possibly, an interest in what matters were being discussed by the court and counsel in the jurors' absence... [and]... may have reflected his momentary exasperation with the proceedings." (Id. at 15-18.) The appellate court found that the record did "not establish his comments were the result of any improper or external inference, any improper bias towards Dang or his counsel, " and did not support a reasonable inference that the juror might not be able to remain impartial, carefully deliberate, or follow the court's instructions. (Id. at 17-18.) The court concluded: "Because the comments by juror No. 12 could not support a reasonable inference that there might be good cause for his removal, the trial court did not err by not questioning him and the other jurors who may have heard those comments." (Id. at 18.)

The Magistrate Judge found that the state appellate court's denial of the claim was consistent with clearly established federal law which provides that a hearing in which the defendant has an opportunity to prove juror bias is only required when the trial court is presented with a substantial question of juror bias, which it was not. (R&R at 7-8, 11-13.) Petitioner objects to that finding, contending that the state appellate court's finding that the comments may have reflected a "momentary exasperation with the proceedings" was belied by the trial judge's statement that Juror No. 12 had a negative demeanor throughout the trial, and that the R&R overlooked Petitioner's argument that he was prejudiced by defense counsel's failure to request a hearing with respect to the comments. (Obj. at 6.) Petitioner points out that only the "gist" or "essence" of Juror No. 12's comments were put on the record, and a hearing should have been held to determine exactly what was said. (Pet.'s Reply [ECF No. 40] at 8.)

Clearly established federal law provides that a criminal defendant has a Sixth Amendment right to a "fair trial by a panel of impartial, indifferent' jurors." Irwin v. Dowd, 366 U.S. 717, 722 (1961). "If only one juror is unduly biased or prejudiced or improperly influenced, the criminal defendant is denied his Sixth Amendment right to an impartial panel." United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1977). The Ninth Circuit has stated that:

A court confronted with a colorable claim of juror bias must undertake an investigation of the relevant facts and circumstances. An informal in camera hearing may be adequate for this purpose; due process requires only that all parties be represented, and that the investigation be reasonably calculated to resolve the doubts raised about the juror's impartiality. So long as the fact-finding process is objective and reasonably explores the issues ...

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