Tong Xiong v. Tom Felker, 681 F.3d 1067

After an initial mistrial, Xiong was convicted of second-degree murder with firearm enhancements and sentenced to 40 years to life; on retrial, the Court of Appeal reduced some enhancements but affirmed most counts, resulting in 15-to-life plus 25-to-life consecutive terms; the jury considered extrinsic evidence about Xiong’s brother Fue, who testified as a hostile witness and whose out-of-court demeanor was observed by jurors; jurors Three, Nine, and Ten observed Fue outside the courtroom; defense sought juror contact information to investigate juror conduct after trial; Xiong filed a habeas petition under 28 U.S.C. § 2254(d) challenging jury misconduct, post-trial juror inquiry, and ineffective assistance of counsel

Issue	Plaintiff's Argument	Defendant's Argument	Held
Juror misconduct post-trial inquiry violated due process	Xiong’s due process rights were violated by the court’s post-trial handling that allowed jurors to refuse discussion with defense	California law permitted limited post-trial inquiry and adequate safeguards were provided; no prejudice established	No unreasonable application; post-trial inquiry permissible; no prejudice shown
Jury’s consideration of extrinsic evidence violated impartiality	Jurors’ consideration of Fue’s outside observations tainted the verdict	Evidence was de minimis and duplicative of impeachment; no substantial prejudice	California Court of Appeal did not unreasonably apply clearly established law; no prejudice established
Ineffective assistance of counsel from cross-examination elicitation	Counsel’s cross-examination elicited unfavorable testimony constituting deficient performance and prejudice	Counsel’s strategy fell within reasonable professional assistance; no prejudice shown under Strickland	District court’s decision affirmed; petition denied

Mattox v. United States, 146 U.S. 140 (1892) (outside evidence may be prejudicial; burden to show harmlessness)
Remmer v. United States, 347 U.S. 227 (1954) (presumption of prejudice from outside influence; may be rebutted by harmlessness)
Turner v. Louisiana, 379 U.S. 466 (1965) (continuity/intimacy of contact; verdict must be based on evidence in courtroom; strong prejudice from outside association)
Parker v. Gladden, 385 U.S. 363 (1966) (habeas relief for improper jury contact; overview of extrinsic influence rules)
Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691 (2004) (en banc; bright-line rule: unauthorized juror-witness communication presumptively prejudicial; may be overcome by harmlessness)