United States District Court, S.D. California
ORDER: (1) ADOPTING THE FINDINGS AND CONCLUSIONS OF UNITED STATES MAGISTRATE JUDGE; (2) DENYING PETITION FOR A WRIT OF HABEAS CORPUS; and (3) ISSUING A CERTIFICATE OF APPEALABILITY LIMITED TO CLAIM 1 OF THE PETITION
BARRY TED MOSKOWITZ, Chief District Judge.
George Berardi ("Petitioner"), is a California prisoner proceeding by and through counsel with a First Amended Petition ("Petition") for a Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. (ECF No. 6.) Petitioner and his co-defendant, both White males, were convicted of murdering, and conspiracy to murder, an African-American male. Petitioner alleges here, as he did in state court, that his federal Constitutional rights were violated because Juror No. 9, the only African-American on the jury, was racially biased, as evidenced from the post-verdict testimony of six of the twelve jurors that Juror No. 9 made a statement near the end of lengthy deliberations to the effect that the deliberations would not have taken so long if a White man had been shot by a Black man (Claim 1), and ineffective assistance of counsel based on allegations that defense counsel prevented Petitioner from testifying at trial (Claim 2). (ECF No. 6 at 4-5, 9-33.)
United States Magistrate Judge Barbara L. Major has filed a Report and Recommendation ("R&R") which recommends habeas relief be denied because Claim 2 is untimely, and because the adjudication of both claims by the state court is neither contrary to, nor an unreasonable application of, clearly established federal law, and is not based on an unreasonable determination of the facts. (ECF No. 30.) Petitioner has filed Objections to the R&R. (ECF No. 33.)
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 Juror No. 9 was racially biased. (ECF No. 6 at 9-22.) Six days after the verdicts were returned, the trial judge received a letter from Juror No. 5, which, as summarized in Petitioner's new trial motion, stated:
At the beginning of deliberations on January 22, 2009, the same day the verdict was finally reached after several days of deliberation, there were still three hold-outs for a murder conviction, and conspiracy had not even been discussed yet. At some point there was only one hold-out for murder. Then, one of the jurors, the only African-American juror, "launched into a heated racist tirade, directed at all of us, accusing us of doing what you're gonna do' and saying you know god damn good and well if this was a white boy shot by a black man there wouldn't even be a trial.' He had risen from his seat and was gesturing wildly." After he caught his breath he continued his accusations of racism. He dared the other jurors to try to have him removed from the jury and stated that he did not want to be there. After the tirade the remaining hold-out for murder was no longer a hold-out, and apparently conspiracy was quickly deliberated on and a unanimous decision reached. Also, the juror who engaged in the racial tirade against all the other jurors spent most of his time in deliberations with his back turned to the rest of the jurors, "occasionally loudly snorting or scoffing, sometimes turning to us and making simplistic and defiant statements like he had a gun, they did a deal, a man got shot!' then turning his back on us again." The final hold-out sobbed before raising her hand for a unanimous decision of guilt. Juror #5 regrets that no one had the courage to call the bailiff regarding what was happening in the jury deliberation room.
(Lodgment No. 3, Clerk's Tr. ["CT"] at 1322.05.)
After the trial judge forwarded the letter to the attorneys, the judge received messages from two jurors indicating that they had been contacted by a defense investigator and asking for advice on how to proceed. (Lodgment No. 4, Reporter's Tr. ["RT"] at 1935-36.) On February 20, 2009, the trial judge ordered the attorneys to refrain from further contact with the jurors, and sent a form letter to all 12 seated jurors advising them that the parties wished to speak to them about their deliberations and inviting them to contact the court. (RT 1936.) Juror Nos. 1, 2, 3, 5, 11, and 12 agreed to testify, and on April 3 and 10, 2009, the trial judge asked them questions from a modified list submitted by the attorneys (CT 699-700, 1310.06-.08, 2057-62), including whether any juror had refused to deliberate or attempted to intimidate other jurors; whether the juror ever felt pressured, intimidated or had their ability to deliberate affected; whether the race of the victim was ever brought up during deliberations; and how quickly they reached a verdict after Juror No. 9's outburst and if it persuaded or influenced the hold-out jurors. (RT 1960-2018.) Their testimony is summarized in the R&R, and is generally consistent with Juror No. 5's letter, but also includes testimony that when a juror responded, "how dare you call me a racist, " Juror No. 9 replied, "if the shoe fits, wear it." (R&R at 13-14.) On May 21, 2009, the trial judge denied a motion for a new trial alleging juror bias and misconduct. The trial judge applied a three-part inquiry which all parties agreed was appropriate (RT 1952), which asked whether the evidence submitted is admissible, and, if so, whether it establishes misconduct, and, if so, whether the misconduct was prejudicial, and the trial judge ruled:
The first step is whether or not the court can consider or make a determination as to what evidence it can consider in the matter and hold an evidentiary hearing where we can make a determination as to what took place.
I think, in reviewing of many of the statements of the jurors, we have really a mixed bag of admissible and potentially inadmissible evidence. There are a lot of statements attributed to juror number 9 that isolated in and of themselves probably would not be admissible, clearly reflecting on the mental processes of that particular juror in reaching a determination in the case.
When we brought in a whole series of jurors to give us their opinions, I was clearly inviting, in essence, them to violate exactly what the law suggests I cannot do, but I thought it was - in the big picture, it was more important for us to find out what, if anything, had taken place. And to do so, we were, in essence, required to somewhat delve into the thought processes or effects that certain statements would have.
To the extent that the people suggest that the motion can be denied at step one without going further, I think is unsupported by the evidence in our particular case. Therefore, step one was not a stumbling block to granting the motion, or at least hearing the motion.
Step two was certainly the most difficult for the court, and that was to make a determination whether there was any ...