Alfred R. Dyer v. Arthur Calderon, Warden, of California State Prison at San Quentin

harbor, not err district party district court. Each summary granting judgment.16 its motion for shall appeal. bear its own costs on AFFIRMED IN PART AND REMAND- III ED IN PART. requested Marlar and the district costs, litigation including court awarded at fees,

torney’s pursuant § to I.R.C.

fee-shifting applicable statute to tax cases in party.17

which the United is a States There

are several limitations to a district court’s fees,

power to award one that

relevant to this ease: Fees shall not be awarded if the United States establishes that DYER, Petitioner-Appellant, Alfred R. position proceeding

its was “substan 7430(c)(4)(B)(i). tially justified.” § I.R.C. interpreted Court has “sub CALDERON, Warden, Arthur of Cali stantially justified” “justified to mean to a Quen fornia State Prison at San degree satisfy per that could a reasonable tin, Respondent-Appellee. Underwood, son.” Pierce v. (1988).18

565, 108 2541, 101 L.Ed.2d 490 No. 95-99002. position The United States’ need not be cor United States Appeals, Court of justified”; rect “substantially to be it need Ninth Circuit. only have “a reasonable basis in law and 2, 108 fact.” Id. at n. 2541. Argued and Submitted Dec. 1997. above, explained As the district court Aug. Decided 1998. incorrectly thought § merely re quires industry practice, reliance on and not practice.

reasonable reliance on such Conse

quently, the gov court underestimated the decide, argument.

ernment’s We do not

however, government’s position whether the “substantially justified.”

rises to the level of position district court is a better attorney’s question.

decide this fees Diego County,

Harmon v. San Cir.1984). We therefore re

mand the issue for light reconsideration in

our interpretation §of 530.

IV reasons,

For foregoing we affirm on

the merits attorney’s and remand the fees Having

16. concluded that Marlar fell within the judgment awarded or a settlement safe-harbor, § 530 we need not consider the al- for- affirming ternative basis for the district court cross-appeal. raised in Marlar's litigation reasonable costs incurred in con- proceeding. nection with such court states, 17. part: Section 7430 in relevant 7430(a). § I.R.C. any proceeding administrative or court brought by against which is or attorney’s United pro- 18.Underwood addressed the fees determination, States in collection, Act, connection with the Equal vision within the Access to Justice tax, interest, 2412(d), § or refund of provision U.S.C. which is substan- title, penalty prevailing party under tially § identical HUG, Judge, and

Before: Chief PREGERSON, BROWNING, FLETCHER, REINHARDT, BRUNETTI, KOZINSKI, THOMPSON, O’SCANNLAIN, T.G. KLEINFELD, and Circuit NELSON Judges. KOZINSKI;

Opinion Judge Dissent BRUNETTI; by Judge Judge Dissent O’SCANNLAIN.

KOZINSKI, Judge: Circuit was of murder and Petitioner convicted whether he sentenced death. We consider was denied fair trial because one jurors during voir lying obtained her seat dire. Dyer

In 1980 Alfred and two friends took hostages four them into the re- and drove Oakland, overlooking mote hills California. They hostages out the car and ordered alongside instructed them to lie down Dyer accomplice and shot all then road. four; amazingly, Dyer survived. admit- two participating shootings argued ted capacity. diminished jurors During voir dire the had been asked including: questions, the usual you any your 13. Have or relatives been victim of or close ever friends type any ... crime? you your any Have relatives or close been accused of

or friends ever offense other than traffic cases? Freeland, prospective juror last Jessica questioned, to both answered “no” as questions. She was named an alternate eventually seated as Streeter, Orrick, Herrington B. Jon & Sut- helped fate. decide cliffe, Francisco, California, petition- San er-appellant. verdict, guilt-phase After the the defense had learned that Freeland’s brother Richard Gillette, Attorney Deputy Dane R. Gener- years some six earlier. shot killed al, Francisco, California, respondent- San trial questioned by judge, Free- When appellee. explained “no” to that she answered land thought shooting question because accident, not a crime. The trial was an tolerant, jurors prosecuto may forget we must be accepted explanation. r - minds, long in their prosecuted Richard Freeland’s incidents buried misun who had also truth just turned over to the court the derstand bend the a bit to killer - had quick A review of the file avoid embarrassment. file that case. yet killing has held that an honest mistaken answer

would have disclosed question rarely to a none of the earmarks of an accident: Rich voir dire amounts to a ard, seventeen, violation; pistol- just intentionally who was constitutional even an fatal, whipped long four then shot in the dishonest answer is not so as the times and back prosecutor nothing, bespeak impar said falsehood does not a lack of the head. The tiality. McDonough Equip. examine the file there did not Power Greenwood, 548, 555-56, fore remained unaware of the facts which (1984).1 845, explanation. Accordingly, 78 L.Ed.2d 663 undermined Freeland’s Free we jury, which must whether land remained on the then sen determine Freeland’s answers and, so, Dyer if tenced to death. The California Su were dishonest whether this un impartiality preme People Dyer, jury.2 affirmed. See v. dermined the Cal.Rptr. 45 246 753 1 Cal.3d P.2d judge The state trial here held brief (1988). hearing in chambers and found that Freeland habeas, Dyer’s lawyers On federal conduct- impartial. clings candid The state investigation an ed Jessica Freeland and finding, reminding juror to this us im easting discovered further evidence doubt on partiality question is a of historical fact. See veracity. The district court held evi- Yount, 1025, 1038, v. Patton 467 U.S. 104 dentiary hearing juror on the issue of bias (1984). 2885, 81 S.Ct. L.Ed.2d 847 More that it but concluded was bound the state over, findings presumed state court fact are finding impartiality court’s re- denied correct; to be set them aside panel lief. A of this court divided affirmed. specified by limited circumstances statute. (9th Calderon, Dyer v. See (1994).3 2254(d)(l)-(d)(8) § See 28 U.S.C. Cir.1997). majority judges A of active subse- Dyer argues that one of these circumstances quently accept Dyer’s suggestion voted him, applies namely that “the material rehearing bane. en adequately developed” by facts were 2254(d)(3) (1994). §

state courts. 28 U.S.C. II B. Freeland’s candor first came into question jury Dyer guilty [1] A. The Sixth Amendment after found guarantees criminal penalty defendants verdict murder but before the start of the husband, impartial, jurors. phase. estranged indifferent The Freeland’s Mel- Provost, prejudice juror single rape of even a would violate vin had been arrested for earli- See, Dyer’s right e.g., Although to a fair trial. United er that month. the details are Hendrix, murky, Dyer 549 F.2d States seems and Provost Cir.1977). important jail paths One mechanism for en in the courthouse and Pro- crossed dire, suring impartiality Dyer is voir which enables vost told that Freeland’s brother had parties probe potential jurors prej years been shot and killed some earlier. Ac- function, jurors Dyer’s lawyer, cording udice. For voir dire to must Provost said that Nevertheless, questions truthfully. expressed strong answer Freeland “had views about biased, Ohio, any lying by Turney jurors; perju- 1. We U.S. do not condone who is see here, however, ry perjury. 510, 535, (1927), We are concerned 71 L.Ed. 749 S.Ct. defendant, rights with the not with wheth- presence a biased a structural introduces prosecuted juror may er the for a deliberate subject analysis. defect not to harmless error See, during e.g., lie States, dire. 1, 11, voir Clark v. United Fulminante, generally Arizona L.Ed. 993 307-10, 113 L.Ed.2d (1933). (1991). presence 2. The aof biased cannot be harm retroactively less; apply 3.The AEDPA does not requires the error a new trial without a - Dyer’s appeal. Murphy, showing prejudice. See Lindh v. actual See United States -, (9th Cir.1977). Allsup, 138 L.Ed.2d 481 Like nothing. just shoot him for So reason to surround- the circumstances that event just it was an accident. down defense turned The ing it.” called as a added.) Provost be request that counsel’s (Emphasis investi- encouraged counsel to witness Dyer’s lawyer asked Freeland gate. District Attor- spoken police to the or to the case, no. she answered ney about the just start of morning, before the next your “And no one from He then asked: phase, the court returned penalty Free- in court at all?” family ever testified prosecutor, bias. question of Freeland’s “Oh, The trial responded, no.” land Curtis, that he was familiar Jerry explained about her husband’s not ask Freeland homicide: with the Richard “expressed strong that she had statement of Richard Free- shooting. ques- the case Nor did he remember views” about the victim, I the ease fact that her hus- as a homicide Freeland about the land tion plea bargain jail, ease to con- it was a which seemed to myself, and band was then it was a case to voir dire manslaughter. And flict with her answer argu- questioned. of an was never was some kind Provost himself there where apart- in front of some ment in a block hearing, which seems On the basis of was killed. ments and someone minutes, have lasted less than five jury: Freeland on the “She judge retained judge, the file over then handed Curtis voir explained her answer dire [to has into chambers.' who called Freeland any- I would not characterize questions], and anyone if in her Freeland judge asked demonstrating thing or did not do as she did homicide, victim of a family candor, had been the as far I’m concerned.” any lack of He then asked yes. this time she answered be so plausible Was it that Freeland could any legal action aware of whether she was the circumstances of her confused about civil, taken, Freeland Yes, criminal or judge explained: death? otherwise. brother’s They accident. didn’t “It was an answered: establishing There’s no foundation how going on so the trial was let us know when knew the brother. We have well she happened to the man know what we don’t have brothers. We’re brothers and we felt, This, accidentally him.” she shot assumptions. I making a whole series “Well, if it justified voir dire answer: know, know, you may don’t where really a occurred, I think that’s an accident don’t was the homicide how much infor- crime, explained why it, Freeland then is it?” except for her mation she had about shooting answers, was accidental: thought she speaks the record for it- self. know, some, you maniac guy is not added.) Why judge thought (Emphasis As a matter of anything like that. or verify the details of the crime— he could fact, or twice and he him once saw where it occurred —when he had my brother look like he did this didn’t hands, mystery. in his is a casefile manager of an purpose. was the He apartment my brother happened ^[2] C. A court confronted with a must undertake party going on and he colorable claim at. It be was investigation of the relevant facts and just everybody clear out of was trying 2254(d)(3) § fight or circumstances. See 28 U.S.C. party there was a because States, (1994); 350 U.S. supposedly hap- Remmer v. United something, and what (1956); 377, 379, gun and it 76 S.Ct. L.Ed. pened is that the went off States, my you So Remmer v. United happened to shoot brother. An 98 L.Ed. 654 infor somebody accuse him for

can’t hate or hearing adequate in camera be purpose, something like mal doing it on know, purpose; process requires you that’s due that. That was his— know, the in and, parties represented, and that you we had no all what he said reasonably re vestigation calculated to choice him. He didn’t to believe juror’s brother, about the doubts raised my even know so he had no solve , (there trial). Phillips, preliminary hearing was no impartiality. See Smith (1982); killer. At the Richard’s time testimo- 71 L.Ed.2d Boylan, ny, living and her .mother were Jessica still United States Cir.1990). (1st readily fact-finding together. available facts also long as the .Other So reasonably explores suggest wrong was to infer process objective and judge’s presented, the state trial her brother weren’t close. the issues Jessica-.and investigation are enti The criminal casefile noted that findings based on that Freeland plaintiff in against correctness. See was a a civil suit Richard’s presumption to a tled plaintiff wrongful Cir. killer. As a death Tinsley Borg, 1990). action, Freeland claimed she suffered brother; of the death of her this too because predicate finding ultimate As a for his suggests they enough -were close for her to biased, the state that Freeland was not charged the killer with a know was not “demonstrate[ ] found that Freeland did crime. response to voir dire any lack of candor” event, never claimed she judge did not questions 13 and 15. The she, estranged from her or that was brother reasoning fully, but comments explain his his Rather, unaware of how he died. logic: suggest following chain stated several times that she knew the de- 1. Freeland claims she did not mention shooting tails of the and had reason to be- response her brother’s murder to voir supra lieve it was an- accident. at 974. thought it question 13 because she dire explanation plausible Whether her —not anwas accident. whether she and her were close— brother would not have been aware of She key determining was the Freeland had the circumstances of her brother’s death during lied voir dire. facts of the The'actual (“We they very if have were not close. remarkably were different crime from Free- brothers.”) have brothers and we description: pistol- land’s Richard was whipped There is no that Freeland four times and shot in the back of 3. evidence (“There’s head, brother were close. the much like own victims. It and her Freeland, establishing living how well she inconceivable that under no foundation Richard, ... roof as their mother and knew the don’t know the same brother.... occurred, siblings, how could have been con- where the homicide much two other so it.”) information she had about fused.. judge facts the state trial should relationship with her brother Are these

Freeland’s judge think If judge’s finding the have uncovered? We so. the thus was the fulcrum of thought If that the of Freeland’s plausibility , that Freeland was candid. Jessica and how she knew siblings only they explanation in name turned on well Richard were —if Richard, he separated he could have asked her. Or were at birth and lived distant Curtis, prosecutor. have asked the Or cities—Freeland’s claim that she didn’t know could casefile, which exactly plau- he have examined the how her brother died would be could were not showed that Freeland’s mother had testified sible.4 But Jessica and Richard fact, hearing in they preliminary at the the criminal estranged; lived under the same roof, proceeding, that herself was a their mother. As one would ex- Freeland with plaintiff in civil and that the shooter pect, her brother’s funer- suit Freeland attended mother, moreover, charged with murder.5 Or he could have al. testified at the was Their Other, ser, Monthly, say only give very Like No Atlantic We A this because wide Grief September judge's findings. at 52. berth to the state trial For our part, we find it hard to that a sister would believe by gunfire be aware that her brother was killed plea bargain, ended the file 5. As the case yet be so unmindful of the details as to believe very very big, have was not so it would not taken Nevertheless, especially since long judge was an accident. This is so if for the it. examine postpone doubt dis- judge Richard’s mother was alive and no did the sentenc- not wish examination, killing part ing hearing an the details of the as of the to make such he cussed the matter under advisement process. Eric Schlos- could have taken normal bereavement fair, rounded, development brought testify pensable in to as to to a Provost ordered Sain, relationship Freeland’s the material facts.” Townsend about what he knew 293, 321-22, Indeed, 9 L.Ed.2d 770 Provost had with her brother. Zant, (1963); also that Freeland had ex- see Thomas saying reported as Cir.1983). feelings her brother’s What this means is strong about' pressed (that the evidence not discovered not inconsistent killing —which discovered) displayed ques- adequate hearing have when would the nonchalance it, significant that a reasonable fact- bespoke also bias on her must be so tioned about . could have decided the bias part.6 finder differently knowledge. armed with this things, leaving judge none of these words, possi- other there must be material making a whole “We’re the matter doubt: bility judge would made judge But a assumptions,” he said. series if he been aware of the different decision facts, must find investigating question. facts in key facts assumptions, make here easily questions A few were discernible. possibility Is there a material the state relationship with her about her Jessica judge trial would have found casefile; brother; an examination impartial was not had he considered all the prosecutor; request for confirmation from readily him? believe facts available to We bring Provost into an-order to questioned court — there is. Had he Freeland about all of would have disclosed Free- these brother, relationship with her a lot more about her brother’s land knew were, siblings would have that the discovered Perhaps letting on. death than she close; fact, very he would have learned security into a false sense of judge was lulled lived same household and prosecutor’s assurance that he was And, that she attended his funeral. had the homicide; the Richard Freeland familiar with casefile, just open cracked he prose- judge might have understood would have learned that Freeland’s mother confirming that Jessica’s cutor’s silence proceeding in the criminal testified plausible.7 In circum- explanation was these plaintiff in wrong- Freeland herself was a stances, obligation court’s [trial] “it was ful action. All" death have cast record, on the develop the relevant facts explanation considerable doubt on Freeland’s merely presume them.” United States v. thought killing that she was an accident Cir.1995). (1st Gaston-Brito, judge’s well and could have shaken the confi- pursuing judge’s lack of .verve And, veracity. dence in Freeland’s once the findings. matter casts on his doubt judge trial determined Freeland lied death, might about her he brother’s well have pre setting aside the To warrant developed impartiality. doubts her about correctness, sumption facts left undevel of “material,” oped by hearing must be The bias was deficient in other the state court ‘ 2254(d)(3), ways judge § see 28 not trivial or tan as well. The trial left untouched U.S.C. Indeed, gential presented. negative ques- Freeland’s answer to voir to the issue dire meaning any your ... something more than the usual tion 15: “Have relatives or any required: “material” seems to be The miss close friends ever been accused of- “crucial,” ing judge’s than traffic facts must “vital” or “indis- fense other cases?” be prosecutor obligation and the file over the course-of the next 7. The had an ethical to examined day or two. bring judge’s attention evidence that light question would cast on the on which the judge wrong 6. The said that was thus when he judge focused-namely whether Jessica was in a speaks “the record for itself” as to Freeland's position to know how her brother was killed. statement, reported by lack of bias. Provost's as court, Had this incident occurred in federal Dyer's lawyer, also-part was record and might prosecutor’s have considered whether the flatly contradicted Freeland. While Provost’s See, e.g., amounted misconduct. silence to Unit- statement, multiple-level reported, Was hear- (9th Cir.1993). Kojayan, ed States F.3d 1315 say, it could have made much more definite questioned Provost had been about it at the hearing. allegation; thing might hus- the whole have been about Freeland failure her by Dyer ginned up be- to throw sand into the history is remarkable criminal band’s machinery judge trial. The thus rea- potential bias issue of Freeland’s cause the jail sonably gather basic infor- Provost met in a directed Dyer when Burris arose mation about “whether in there was a where a fact during the trial. Situations cell whether it was a death that oc- jail cell as death and juror’s lands the same husband instance, curred in such an because we sufficiently and trou- want are rare the defendant fact whether preliminary the trial she has to merit a close look know blesome name, by that all of may legitimate a brother these judge.8 There have been things judge that have to be looked at.” The explanation Freeland’s failure to disclose calling jail, open possibility trial held Provost was in but the that her husband subpoenaing years later: “I don’t know about put to the test. Ten judge never her necessary later, somebody stage. at this It deposition, Freeland claimed a in her necessary, to do that. It could become let memory: I found out fuzzy [Provost] “When way.” already putme it that the ease was was in trouble either But already past voir dire.” over or we were Yet, morning, prosecu- next when the the. arrested a full month be- Provost had been . produced confirming tor a casefile trial, paid Freeland him a visit. fore the him, had told account what Provost time, about this at the Had she been asked judge not call Richard’s death Provost. visit could have been con- the date of her invention; everything Dyer no had re- was by consulting prison visitation rec- firmed verified, ported that turned out to be could- Maybe knew of her hus- ords. Freeland trial no basis for true. The thus had dire, maybe during voir she band’s arrest shrugging off Provost’s further statement oppor- judge passed up the didn’t. The trial expressed strong that. Freeland had views tunity out. to find shooting. about the Provost been called Had witness, as a he could have elaborated on his judge’s The trial most serious blunder reported statement and bias Freeland pursue failure to Provost’s statement his might have exhibited a result of that .as “expressed strong views” about the Freeland certainly experience. traumatic He most killing. circumstances of her brother’s One light on whether Freeland could shed juror had been excused for cause potential telling the truth when she claimed having “strong ... because she admitted by acci- thought her brother killed .was people feelings that who are involved jail, was in there would dent. Since Provost have, drugs I drugs anything to do with delay trying locate have been no If just for them.”9 don’t care subpoena him. ordered him Had death— strong views about brother’s brought would have been appear, he plausible Freeland’s later ad- entirely given post-haste. broth- very that she was close to her mission ability might er—-this have undermined her laid California verdict; certainly impartial an it to render inadequate for the factual devel the blame light a on her failure would have cast sinister hearing the opment at the bias shoulders response to killing mention the in her People Dyer, of defense counsel. See question 13. 26, 59, Cal.Rptr. 753 P.2d Cal.3d Tamayo- Burris, generally Keeney v. to the Dyer’s lawyer, John went 1, 11-12, Reyes, the court heart of the matter when he asked cause-and-prej (applying questioning. in for The L.Ed.2d 318 bring Provost inadequate factual devel judge point at that de- udice standard trial refused because error). attorney Spe- opment attributable to support no the fense counsel had evidence juror express thing, 9. We no view as to whether such would have to wonder For one one due have to be excused as matter of would process. anything about whether Provost told Freeland We note this as ah authoritative might and conduct that bear statements oper- how the state law would determination of guilt on her evaluation of his or innocence. ate these circumstances. in began just minutes after the judicial phase, which to take refused cifieally, the healing. in plaintiff the was a Fre'eland notice that opinion in the crimi- that an ahd civil action extremely situa the delicate Given killer stated' Richard’s against case nal suspected prejudice tion when a victim on the head the attacker “struck the misconduct, judge trial must assume the the him in and then shot pistol with a

four times responsi “primary obligation ... to fashion a Dyer, 45 Cal.3d of the head.” the back procedure ascertaining whether mis ble 1. It did so Cal.Rptr. 753 P.2d so, whether actually conduct occurred defen- the facts which “[e]ach because Boylan, prejudicial.” it was United States judicial to take notice requests us dant now (1st Cir.1990). While the trial presented to have been could may ongoing, lawyers not conduct trial is court.” Id. jurors investigation aggressive kind Supreme Court overlooked The California In such cir they would of other witnesses. was this evidence before duty the fact that judge trial fulfills his cumstances the hearing; of the was “erects, court at the time employs, trial only if he suitable casefile of Rich- in’the criminal all contained investigating allegation [of framework for not take- The court also did ard’s killer. its Id. Where gauging effects[.]” bias] Curtis, prosecu- fact that credibly alleged, account juror misconduct or bias is tor, very with the case and had was familiar coun trial cannot wait for defense information obligation to share his with an spoon every him bit of information sel to feed And, opposing bias; eohnsel. court and make out a case of which would course, herself and Provost were rather, Freeland independent respon has an points. questioned on these to be allegation available sibility satisfy himself that the a ease where defense counsel This was not of bias is unfounded. or knowl- relevant evidence

failed to discover bit, Here, given the quite Burris did n edgeable witnesses. circumstance. He constraints of time and court that one of the might ag- promptly been more advised thé Bums Where highly jurors have failed to disclose questioning in Freeland and gressive is during voir dire. At conflict between her claim relevant information pointing out the direction, judge’s he obtained corrobora- killing was an trial thought Richard’s that she prosecutor, in information from the available tion for the and the information accident Burris, however, including requested the casefile. He seriously casefile. brought questioning, in for handicapped preparing hearing. in for the Provost denied, co- request when that he had contact Freeland and He could not jail her, interview Provost and then clue as to how she would counsel so he had ño At the reported what he said’ to the court. respond confronted with her brother’s when right hearing, Burris asked Freeland Even if Burris had access murder. timely objected the court questions and when hearing we as- casefile. before —-which against immediately him. follow- ruled And though it’s disclosed sume nowhere ing hearing he drew the court’s attention not have examined the could file record —he file, namely key rebutting fact contained eye Freeland’s as towards prosecution ... story. By that “the blue card from the yet the time tes- untold certainly suggests that her brother was shot tified, Nor could judge. the file was with the . of the head and died somewhat aggressive questioning Free- the back Burris be too the delicate land,. life in of a violent manner.” Given soon have his client’s who penalty fact that the might well have taken circumstances and the Freeland her. . hands. away, phase trial moments it’s suggestion, that she was was umbrage counsel’s doing It to fault Burris for not more. especially exposed charges as it her to hard lying, enough that counsel did to alert recognized as much when seems to us perjury. Burris up said, problem; to the it was then “[Mjaybe position I’m not in a the trial court he attention judge give the matter the also really get a candid answer.” Counsel obviously penalty it deserved. preparing his full for the hands

979 (9th Cir.1993). 1457, judge 1460 While the district are not unmindful the trial We Through no made no it held position. findings, in a court nevertheless was difficult too evidentiary own, hearing. week an We can therefore his verdict in a five fault of suddenly jeopardy. question of whether Freeland trial consider murder was a juror; fully re- biased with the benefit of devel- was last alternate was Freeland oped conclusively record. an- required the court This record moving her would have verdict, key First, questions: new our two empanel swers Freeland guilty aside set plainly Free- lied when voir scratch.10 Had she answered “no” to jury and start from 15; during questions voir 13 no trier of discovered dire and rational land’s omissions been dire, juror again find could have been selected. fact could otherwise. And lied another questioned by judge was completed five trial and when she With weeks of hand, presumably to cover problem no comfort- her earli- verdict chambers — Second, judge eager jury. to er lie and remain on the Free- able solution. No would be circumstances, give implied and we land’s rise to an inference of discover bias in these lies part. judge’s complacency to an on her Because bias is a attribute the trial learning anything question of law and fact reviewable de ostrich-like desire to avoid mixed Johnson, 1150, novo, jeopardize see Burton 948 the verdict. v. F.2d that would (10th Cir.1991), there is 1158 no need reason, not did Whatever the 'to the court for remand district consideration was, almost himself avail of evidence of this instance.12 issue first Instead, he literally, right his nose. under told the finding made Freeland killing A. The circumstances Richard’s nearly inexplicable finding is truth —a possibly could were such Freeland not knew, irrational positively what he given it have confused an accident. Free- with easily If what he have learned. given could happened account of what made land’s adequate investiga- happened here is an what waving gun like the his sound shooter bias, say are at tion into we a loss around, happened to gun go and the off is not. what direction of her brother.13 But the Cali- reviewing Appeal fornia Court of the indict-

Ill killer described the event ment Richard’s prop angry between [the the facts were not as “an confrontation Because court, finding con- erly developed by victim[.]” its court shooter] the state “the struck [the shooter] is entitled to cluded that fact that that Freeland was unbiased not four with a such the victim on the head times presumption of correctness.11 Under circumstances, then him in the back of the pistol courts must ad shot the federal novo, This considering suggests inference malice.” de head dress court, picture Free- developed paints quite in state different from the evidence explains light account of the incident and also other which comes to land’s evidence Rowland, why charged with murder. Curtis the shooter afterward. See Rhoden lied, in, we the trial 12. Because conclude that 10. Because the verdict reopen jury probably dishonesty would deliberations, not have been free to decide a neces need not whether if another alternate had been sary predicate finding Com to a bias. available. 845, McDonough, pare 104 S.Ct. 556-57, (Blackmun, id. at normally appellate findings are 11. Slate JJ., O'Connor, concurring); id. at Stevens and presumption well. to a entitled correctness JJ., Marshall, (Brennan Mata, 539, 546, See Sumner v. Green, concurring judgment); Zerka 66 L.Ed.2d 722 But the California Cir.1995); (6th F.3d n. 7 Amirault inadequacy Supreme cure Court here 1992); Fair, (1st F.2d 1405-06 Cir. hearing. explicitly the trial It refused of to consider ing court's Lockhart, Cir. of the circumstances surround- Cannon v. Dyer, shooting. People 1988). Richard's Cal.Rptr. Cal.3d (1988). 753 P.2d 1 the California Court's Because anyone such a kill- 13. That would think reckless findings incomplete grounded were in the same credulity. ing is not a crime itself stretches court’s, findings, its are no record as the trial presumption entitled correctness. more to really happened? potential the trial had know what instructed Did Freeland jurors process deposition, Freeland ac- to sure while this “[m]ake In her No doubt. “very going you every question and Richard were hear knowledged that she every given[.]” the brutal is asked and answer that is It is inconceivable close.” lost, continued, point killing would not Lest the of Richard’s circumstances before, you you I’ve to “[A]s within indicated have been discussed Freeland hear, indeed, household; right duty make Freeland’s father testi- to to hear. So you through family spo- had ever sure do.” sat that no one Freeland fied questioning potential jurors it killing an accident. Nor is over the ken of the days of five and had that Freeland would have been course time consider believable questions how she would answer the same that her mother testified unaware happened turn hearing, which when her came. When her turn did preliminary killer’s come, shooting. Freeland “no” to voir dire within weeks of the answered ten questions though 13 and her inci- death was Freeland’s account of Richard’s serious, were far more in number dents both just tip of Pinoechio’s nose. Freeland magnitude, than those disclosed oth- she had never been a also lied when she said preceded who her. ers had child, crime. When she was a at 'a victim of inexplicable nega- parents separated, Equally her were Free- was Freeland’s time when kidnapped siblings. response any her tive when she was asked if land’s father her and police finally “relative” been offense explained that “the had “accused Freeland up than traffic cases.” hus- caught with us and he arrested.” other Freeland’s just teenager rape charges she was at- had been arrested on Freeland was a band When cousin, Buddy, deposition, trial. by her who broke into a month before her tacked dark, explained a knife and Freeland that she did not consider her house showed relative, fought pro- pulled underwear off before she her husband but other her jurors police. spective offered information about him off. Freeland’s father called had spouses. downplayed the incident her de- in-laws and former Freeland and Freeland married, legally the hell Provost were still and Free- position, but admitted that “scared shortly went to visit him after his ar- out of me.”14 land rest.. many to mention the Freeland also failed prey.

burglaries to which had fallen Her Even her nondisclosure about Provost many explained, the rec- been broken into so times she could somehow be arrest cars had outright. car been stolen ord of other relatives cannot. Freeland’s lost count. One had kidnapping al- burglarized on at least father was arrested for the Her home had uncle, deposition ready Jason During three her mentioned. Freeland’s occasions. Caldwell,- walking in on one with the Freelands from vividly recalled who lived Freeland time, burglar had been arrested for murder robbery watching as the fled time in- through a sack of loot in 1970. Caldwell was arrested the back door with Louisiana again in 1978 in connection with an armed thrown over his shoulder “like Santa Claus’ being accessory jurors robbery pled guilty bag.” potential disclosed Several dire; paroled fact. during after the Oak- burglaries voir Caldwell years picked off a few later. In 1980 Freeland’s watched as most of them were land Billy possess- peremptory Being the last to be brother had been convicted of challenge.15 seated, surprise; than a ing brass knuckles. And less month Freeland was not taken my embarrassing 14. were was married had house broken into several No doubt these events Freeland, my wanted to air times. I also had wife’s car stolen twice.” and she not have stated, “My family's dirty public. linen in Yet she could Barbara Covarrubias house was bro- year.” Dale have asked that she talk about chambers, events ken into three times in one stated, Gritton jurors potential "My apartment as other done brother has had his bro- during voir dire. John Braucht ken into several times.” stated burglar, guess supposedly "I under the drugs, my parents’ Courtney my home that ''I’ve had influence of broke into Coleman staled City living were theref.]” I was in Union when I while house—when dire, saying I have unfair not a distant Billy was for been arrested before the voir marijuana. let Alfred something, and relative done then possession of LSD has Later, stat- Dyer get trial.” Freeland a new family long history a Freeland’s information, giving “I forthrightly, ed dislike law, might have every not event and rele- period. that me is not Information to jury sat in the box come to mind as Freeland vant_(cid:127) my was the vic- brother [E]ven to But her failure mention during voir dire. crime, you how take that tim of can violent of her relatives had been accused of say, she was little information and ‘Here explanation. an innocent Near- crime defies ” Dyer.’ unfair Alfred ly relative of hers had been ar- every close rape; her for Her husband for father rested: conclusively B. the record estab- Because murder, uncle for and kidnapping; her Jason lied, repeatedly, lishes that Freeland and lied Billy again robbery; her brother for armed proceed her lack of we to consider whether knuckles, possession again and for of brass an “[injability candor reflects an to render possession; Buddy cousin for drug for her Smith, impartial verdict.” attempted rape of Freeland herself. Free- 102 S.Ct. 940. many incidents for us to land overlooked too actually biased— Whether Freeland was responses forgetful- her to mere attribute i.e., disposed to cast a vote whether she was ness. eigh- against Dyer figure difficult out —is Indeed, deposition in her Freeland years acknowledged teen later. Freeland Rather, forgetful.16 she claim be stead- brother, very that she close to her court, fastly maintained she —not period following added that the his death defense, prosecutor not the —-was certainly possible anger painful. It’s only judge of what information was best and killing her about brother’s drove Freeland burglaries As to the countless relevant. lobby finagle jury a seat on the so she could homes, explained her that she cars and she Free- and death sentence. conviction no bearing that these events had on thought crimes, many land was a victim of herself impartiality: may jury to use her service have wanted my have rack brain to I didn’t time to message to send On the deterrence. every my time car or house remember hand, rela- many other the fact that of her burglarized didn’t and it have had been arrested she could suggests tives bearing on the to me because if case empathy some criminal harbored Oakland, I you live don’t know of However, we need not resolve defendants. anyone who lives in Oakland who has question, the actual bias which would first burglarized. never been court, require findings by factual the district added.) (Emphasis shrugged Freeland even dispositive because bias issue is burglary suggestion off could be Thus, further speculate need not here. just way a crime: “It’s of life considered about Freeland to lie. what motivated just way things go. It was not a and it’s cases, extraordinary courts me to traumatic event caused be so presume -circumstances. based irrationally try pay bias that I would bitter 556-57, 104 McDonough, 464 U.S. at Dyer who back like Alfred has evi- someone (Blackmun, O’Connor, S.Ct. 845 Stevens burglaries Id. dently done or robberies.” JJ., im concurring) (accepting doctrine significance even belittled the circumstances); id. plied exceptional “Am her uncle’s arrest for murder: I to (Brennan Marshall, everything, the little information reveal (same); JJ., concurring judgment) That’s relatives? know about other ridicu- Green, n. 7 you Zerka v. lous. If that’s what wanted and feel did, however, testify review Free- court did not hear Freeland district The district testimony, separate deposition* not con- twenty-one attempts land's and was evaded because she by Dyer enough petitioner subpoena vinced had shown to overcome her. Because the This, course, presumption court deferred to the trial court under correctness. district finding independent of lack we do the benefit of an is not the same as section not have finding impartiality independent to review. of bias. Fair, Cir.1995); 968 F.2d Amirault Jessica Freeland was not in involved (1st Cir.1992); subject case, crime which was the of the Tinsley Borg, 1405-06 nor personal relationship did she have a (9th with Cir.1990); F.2d Cannon participants. of the trial every But there is (8th Lockhart, Cir.1988); F.2d indication that she was not indifferent to Eubanks, United States jury. service on the watching After a num- (9th Cir.1979); Allsup, States v. United potential jurors relatively ber of mi- disclose Cir.1977). 71-72 dismissed, get nor crimes and she chose to give very What kind of to a killing circumstances rise conceal a major crime —the of way very her brother in a finding implied that she knew was of bias? Smith v. Phil- way Dyer similar to the was accused of kill- lips, gave examples Justice O’Connor some ing his victims.17 She also failed to disclose presumed: of situations where bias be many jeopardized other facts that would have juror “a revelation that the is a close relative serving Dyer’s jury. her chances of on Later participants one in the trial or the on, when she questioned about her transaction, juror criminal or that the was a death, again by pre- brother’s she lied once in witness or somehow involved the criminal tending accident, thought she it was an and transaction.” 455 U.S. 102 S.Ct. 940 by telling in family that no one her course, (concurring opinion). juror a Of killing. had testified about the The inference could be a witness or even a victim of the we draw from all this is that Freeland lied in crime, perhaps a relative of one of the law- preserve juror order to her status aas and to yers judge, perfectly or the and still fair right pass secure the to on sentence. objective. quite Yet we would be trou- why We don’t know Jessica Freeland so jurors bled if one of the out turned to be the Dyer’s jury.18 cherished her seat on Jury prosecutor’s highly brother because it is un- duty service is a civic that citizens are ex- likely impartial individual will remain pected perform willingly to upon when called objective when a relative has a blood to do so. But there is a fine line between putative in stake the outcome. Even if the being willing anxious, being to serve and juror up swears it will not and down accepting grave between responsibility judgment, presume conclusively affect his passing judgment on a human life and kinship jury he will not leave his at the being eager you perju- so to serve court room door. The effect this factor would ry to being avoid struck. The individual who impossible predict: juror to Would improve lies in order to his chances of serv- yield sympathies, fight to his or them and ing has too much of a stake the matter to way? way lean the other There is no be considered indifferent. Whether the de- know, permitting juror such a to serve sire to serve is motivated an overactive jury would introduce into the room an extra- duty, by past sense of civic a avenge desire to materially neous influence that could color wrongs, by hope writing a memoir or deliberations. The motive, by some other unknown this excess .lacking quality would be indifference unpredictable of zeal introduces the kind of which, along impartiality, with is the hall- jury factor into the room that the doctrine of juror. mark of an keep unbiased is meant to bias out.19 already Department 17. At the time of voir dire the of Corrections Central File to check Dyer up appeal. informed the venire that was on trial for on the status of his While it is hard murder, attempted handgun, murder and to know what to make of these are facts— penal- prove and that the ty- the death asked for too few number that Freeland was on particular seeing a vendetta or had a interest in Dyer they certainly Alfred are not con- executed— twist, yet Dyer's 18. In another bizarre after trial picture sistent with the of a model indifferent Freeland became an officer with the California Department juror. guard of Corrections and served as a Quentin, Dyer example, on way death row in San where is held who 19.For lies his awaiting secretly plans execution. Freeland later became because he to write a memoir of parole agent, experience might differently pro- and on at least two occasions—in then vote drama, prison regulations might inject personal preju- violation reviewed vide he —she photocopied portions Dyer’s jury attempt jazz up dice confidential into the room an Freeland, eommitting on the is juror, materially who lies fraud no A like more privileges position legitimate in- of that than repeatedly response entitled background stranger jury introduces de- who sneaks into the room: quiries about process. parties uncertainties into the “His relation the court and to the structive course, is, possibility that origin; in its pretense There tainted is mere personal against so because of some Id.20 and sham.” managed to the which she hide defendant letter, we to Clark to the Were follow we juror But is perjured the a unfit from court. Dyer have conclude that the of even in absence such vindic- to serve twelve, by jury a of convicted eleven juror contempt with the bias. If a treats tive jurors one We need not intermeddler. ques- admonition to answer voir dire court’s far, go quite so can because we resolve the expected to truthfully, she can be treat tions grounds. case on narrower Clark never- juror responsibilities as a listen to her —to instructive theless because Justice Cardozo evidence, facts, not to consider extrinsic the juror equates way there a who lies his onto judge’s equal instructions —with to follow the jury juror a who the is related a liti- Moreover, major juror a who tells scorn. gant: litigants “If a kinsman of one of the a serious conundrum for the fact- lies creates jury gone disguised into the room the as finding process. can who her- How someone complaisant juror, the effect would comply duty the to tell the self does not with presume no different.” Id Just as we would judgment people’s in truth stand other prosecutor bias if the of the brother were veracity? Having perjury,. committed juror in jury, presume a we bias where a lies may believe that the witnesses also feel no - jury.21 order to secure a seat bn the truth the obligation to tell the and decide prejudices rather than the case based on rights is at stake here than the More testimony. petitioner; “justice satisfy must the appear Court, States, justice.” v. Writing a Justice ance of 348 unanimous United Offutt 11, (1954). 11, 14, 75 juror a who lies his U.S. 99 L.Ed. 11 Cardozo concluded that juror way jury really irregularity into a An in the 'selection of those who the room is judge judgment very long the in “casts a shad at all: “The who examines on voir will sit Abbate, 571, process organizing ow.” v. engaged dire is Cruz Cir.1987). perjured juror incompati A court. If the is as questions answers untrue, truth-seeking process wilfully knowingly ble with our are evasive talesman, juror Bracy Gramley, accepted, accepts is a in name who bribes. when Cf. 1793, States, 1, 11, 1797, 138 only.” 117 S.Ct. Clark United (1997).22 (1933). regard agree In 77 L.Ed. 993 L.Ed.2d 97 53 S.Ct. Clark held juror Judge position by that a who Winter: obtains Chief ours, process. Similarly, juror very clearly hold- who text different from it is deliberative importance disputes ing lies because he lowing fol- not dicta. judge’s may instructions also walk to considering meaning his own when beat juror Having perjury, 21. committed in Free- Rosen, Jeffrey Angry One reasonable doubt. See position might land’s realize that the likelihood Woman, Yorker, 3, 1997, New 24-Mar. Feb. being prosecuted significantly if diminishes (noting public 54-64 erosion of confidence in Clark, Compare she votes to convict. U.S. at jury system caused irrational hold- unanimous Colombo, with United States jurors). out (2d 1989). Cir. F.2d i juror's 20.The was whether the Clark implied counterpart has a The doctrine of bias jury statements in the room could be considered judicial require in the cations ethics which -of convicting having during her of lied voir dire. they' disqualify judges to have even themselves holding that the be statements could consid- ered, proceedings, smallest stake in or if privilege to overcome the impartiality might reasonably believe their ju- between then accorded communications 1797; Bracy, questioned. S.Ct. at during rors The Court held that deliberations. Conduct, privilege apply juror ABACode of Judicial Canon 3E does not because a who safeguard position by Both rules both existence and the obtains his fraud is not in fact a appearance justice. juror. While this statement was made in a con- dence, it; justice governed by in cir- cannot administer and be but the law [CJourts Burr, will not trust him.” United States v. in which a can commit cumstances (D.Va.1807) (emphasis 25 F. Cas. add crime in order to serve as a a federal ed). law, implied In the common bias can be so with in a criminal case and do way all the traced back to Sir Edward Coke’s long sanction so as a convic- no fear of dictum Bonham’s Case that no man shall government’s brief ex- tion results. Dr. his own cause. See Bon possible no concern over the crimi- hibits (C.P. Case, Eng. Rep. ham’s nality juror’s conduct and asks us of the 1610). pedigree neatly disposes This inquiry.... further to affirm without argument state’s bias would be government chooses 'to [WJhether Lane, by Teague “new rule” barred prosecute such eases is not for us to 103 L.Ed.2d 334 not reduce its incen- decide. We need (1989). Implied indeed be the sin seriously, take such conduct tives to gle history judicial oldest rule re however, government by giving the view, as Case is often as Bonham’s identified overlooking juror cause to believe the .first case which a court struck a down preserve tainted convic- misconduct will See, duly legislative e.g., enacted act. Suzan tions. Sherry, na The Founders’ Unwritten Consti Colombo, 869 F.2d United States tution, 54 U. Chi. L.Rev. (2d Cir.1989) omitted). (internal citations Judge argues O’Scannlain nevertheless perfectly jurors may Not all walk a implied an bias is not established rule of juror might fail to straight A distracted line. procedure constitutional because we can magazine a he to. An mention subscribes point Supreme announcing to no Court case im- juror might exaggerate the embarrassed it. But a rule needs to be for announced portance job. of his Few voir dires are purposes Teague only if it’s new. What impeccable, irregularities most can be we have Teague here is the antithesis of —a shrugged off as immaterial to the fairness of deeply rule so embedded in the fabric of due magnitude the trial. But the of Freeland’s process everyone granted. takes display of insouci- lies and her remarkable precisely This is what the Court did expressed feeling ance —her States, Clark United 289 U.S. at fatally would decide what under- matters — Offering example S.Ct. 465. an obvious ability fairly mine our confidence in’her to qualified someone who would not be to serve up decide fate. The facts here add juror, as a it mentioned a relative of one of presume juror that rare case where we must parties: “If a kinsman of one Johnsoh, bias.23 See Burton v. litigants gone jury into the room dis- (10th Cir.1991). guised complaisant juror, as the the effect would have been no different.” Id. a Such IV juror, said, a “in Court would be only.” name Id. The Court there under- Presumed bias dates back in this every stood —as court that has dealt with the country at least to Aaron Burr’s trial for prejudice has understood —that treason, Marshall, riding Justice where Chief juror’s must sometimes be inferred from the circuit, noted that an individual under the relationships, experiences, or life conduct personal prejudice presumed “is influence finding without a of actual bias. prevent to have a bias on mind which his will case, Ohio, impartial according Turney In decision of the (1927), testimony.” explained, “He Marshall L.Ed. 749 the Court notwithstanding prej these it clear declare made that bias must sometimes be presumed, though evi- udices he is determined listen the decision maker appear 23. We to be unanimous that if Freeland al involvement she would have had to know and death, knew the circumstances of her brother’s understand the circumstances facts of her (Brunet- murder.”). presume brother's death to a We must bias. See infra be brutal ti, J., ("In dissenting) part company only order for Freeland to have as to whether such knowl- edge imputed necessary relationship can to create the emotion- be to Freeland. contrary. has no Tumey, bearing In Smith on our ease completely unbiased. may. be the majority tacitly Ohio town was tried unless we assume man in a small Mayor liquor. possession doing. unlawful Marshall it of what Justice accused his judge. Greenwood, served as addition also by That it did not is confirmed Mayor, he a small cut salary as received the Court held that the bias could not where imposed judge. The Su fíne he as each case, implied on the facts of that convic unanimously held that a preme Court fact, does, exist. assumed that doctrine imposed process. The so violates due tion Greenwood, 556-57, 104 464 U.S. at acknowledged that some fact-find first Court (Blackmun, J., concurring, joined Ste actually by a prejudiced would not ers JJ.) O’Connor, (fifth, and sev vens and sixth in the “There are personal stake outcome: majority). enth votes of Accord Leonard v. mayors who not allow such doubtless States, 1696, 12 United in each case consideration costs $12 (1964); Tumey, L.Ed.2d But, judgment in Id. affect their it[.]” 532, 47 S.Ct. 437. held, subjective is not state of mind create an dispositive opinion when circumstances No two centuries of due requirement “[T]he of bias. inference Republic except dissent our case— — judicial procedure law in process of suggested that criminal defendant has argument that men of'the satisfied lawfully by jury tainted might be convicted greatest honor and the self-sacrifice highest logic, bias.24 Under the dissent’s injustice.” carry danger it on without of could jurists Dyer could that would reasonable hold held, Rather, the Court we'must look Id. process accorded he been due procedure fairness of the and whether jury comprised of had been convicted a presumed from the circum bias should (1) following twelve individuals: “Every procedure offer which would stances: (2) Curtis, Jerry prosecutor, of mother as possible temptation average to the man (3) partner, law Oakland’s Curtis’s former proof re forget of burden (4) Police, Dragon of Chief Grand defendant, or which quired to convict (5) KKK, Floyd Bay Area of Mur- sister nice, him might lead not hold the balance (6) Floyd shooting, ray, who died State, between the clear and .true (7) mother, Dyer’s of Murray’s the victim accused, pro.eess of denies the latter due (8) (9) ex-wife, robbery, prior Clark, Tumey As in law.” Id. (10) Attorney, council- an Oakland District stopped bias can never whether running “tough-on- on a man re-election Rather, it presumed from circumstances. (11) Provost, Dyer’s platform, crime” Melvin implied as a accepted the doctrine of (12) wife, cellmate, and Provost’s Jessica it to applied the facts of the case. given and they long they had all sworn Freeland —so Nothing Phillips, Smith We, hand, be- would be fair. the other (1982) or Mc 102 S.Ct. L.Ed.2d take jurist would lieve that no reasonable Greenwood, Equip., Donough Power Inc. v. Rather, jurists reason position. of 78 L.Ed.2d individuals, agree all that each of these Smith, contrary. is to the Justice jury, their way made onto dissented, major worrying that the Marshall stopping to been struck should have without away ity doing with the doctrine subjective into their state of mind. inquire joined the implied bias. Justice O’Connor VACATED, opinion panel is the dis- not opinion understanding on the case is doctrine, is and the trict court REVERSED id. at 102 S.Ct. abolish see proceedings. majority nothing to the REMANDED further and the said ("Mal- Malloy, Malloy, at 981 24. The dissent cites United States v. set facts. Cir.1985), proposition that implied urges adopt F.2d 979 for the loy per [of us to se rule split appeals on the "the federal courts were joint We the invi- bias] in service cases. decline (O'Scann- implied bias.” Infra at 995 issue Smith) tation.”). disagree (e.g., about Courts lain, J., dissenting). nothing Malloy-does more applies, it exists. the doctrine not whether when particular than refuse find bias on BRUNETTI, demeanor, Judge, dissenting, juror impartiality Circuit a factual issue THOMPSON, R. Judges statutory DAVID presumption falls within the O’SCANNLAIN, KLEINFELD, joining. correctness. Id. The contends that the trial court investigation was so lax in its Today’s opinion sets forth a new rule of its determination that Free- departure law that is a substantial from our impartial land was is not entitled to the precedent and deals a serious blow to the presumption of correctness. I disagree. power system of the trial court. Oür of law mandates deference to the trial court on The state trial court findings made credibility certain issues facts and regarding Freeland’s answers on voir dire were not Today, of witnesses. that deference is intentionally misleading. dishonest or At the pushed appellate aside so'that the in camera hearing, the .trial court laws, applicable review the but also adequate opportunity to witness Freeland’s position facts. decide the Our has never questioned demeanor and her about her un- been to sit as a finder of fact I cannot derstanding of the circumstances surround- support power the extension of our so. do ing her brother’s death and whether she follow, respectfully For the reasons that partiality. believed it would affect her dissent. trial court anything refused to “characterize [Freeland] did did not do as demonstrat- I. Actual Bias Standard Also, ing any lack of candor.” the trial court “guarantees The Sixth Amendment allegedly found Freeland’s false answers criminally panel accused a fair trial questions to the two voir dire at issue were impartial, jurors.” ‘indifferent’ Irvin v. given “good “inadvertent” and were faith.” Dowd, 717, 722, application statutory excep- Absent of a L.Ed.2d 751 The Constitution “does tion, give presumptive we must weight to the require every a new trial time a has finding impartiality. of Freeland’s The ma- placed potentially in a compromising jority apply presumption refuses be- Phillips, situation.” Smith cause, (1) believe, they material facts were (1982). L.Ed.2d 78 As developed, not convincing and clear and out, majority points process requires due evidence demonstrates that the state court’s by “jury that the defendant be tried honesty determination as to Freeland’s was capable willing solely and to decide the case I disagree. erroneous. it, on the evidence before a trial and prevent prejudicial ever watchful to occur majority The concludes that facts material rences and to determine the effect of such developed about Richard’s death not were they happen.” occurrences when Id. For adequately proceeding. the trial court trial, Dyer to be entitled a new he would However, the trial court found Freeland hon- have to “first demonstrate that a failed estly believed that her brother’s death was honestly answer a material on accident, and therefore was not a crime. dire, voir and then further show that a cor finding This is not inconsistent with Freeland response provided rect would have a valid close, being and Richard the fact that challenge basis for a for cause.” McDon death, family seriously by was affected his or Greenwood, ough Equipment Power wrongful institution of a death suit and " 548, 556, 78 L.Ed.2d 663 recovery. Similarly, eventual that Free- (1984). pro- land’s mother testified the criminal habeas, reviewing petition pre- ceedings import is of no since it was not sume the findings correctness state court shown that Freeland knew about this testi- “basic, primary, Therefore, mony. or historical facts” majority unless like the eight statutory one of the exceptions applies. original panel, Ninth Circuit I would not Keohane, Thompson 109-10, disrupt the state courts’ determination that honestly 133 L.Ed.2d 383 Be- Freeland answered on evi- based cause depends heavily resolution on the trial dence unknown to the state trial that is appraisal credibility wholly court’s finding. of witness and consistent with such a Although the number of clearly erroneous. that Freeland obvi- majority The assumes crimes, family of her committed members to reveal that she was ously failing lied highland the number cousin, seems father her that her had of.incidents attacked family were which she members her- her kidnapping, that uncle been arrested for high, facts of crimes also seems these victims murder, her had been arrested that do Freeland was dishonest. not establish that drug charges, on brother had been arrested is from a crime-ridden communi- Freeland and had been that Freeland’s cars home ty plausibly both her fact which affects burglarized, and her husband that former —a what, qualifies as understanding of a crime However, rape. been arrested for as Questions 13 and influenced her answers to facts, Freeland has each of these additional and The court and the state su- '15. trial why originally to disclose explained failed preme ques- found the voir dire both explicitly them. The district court credited ambiguous tions Freeland’s answers that the new testimony and found Freeland’s deposition were camera and honest. detract from state evidence 'whole,' including The record Freeland’s findings credibility. courts’ about Freeland’s deposition testimony responses and her history of case illus- procedural The hearing, adequate support is the in camera credibility was thor- trates that Freeland’s findings being that she dishonest oughly multiple occasions. scrutinized on Therefore, during voir dire. the additional First, the state trial court held an camera n factsdo not destroy presumption phases hearing guilt penalty between the findings courts’ of fact are correct. not biased. and concluded rejects the state courts’ fac then A motion for mistrial was denied. Sec- findings tual and instead concludes ond, hearing on the state trial court held a responses patently implausi- were Freeland’s response to motion for a this issue in blfe.' To reach this conclusion continual that the voir new trial. The trial court found ly assumption their that “Freeland lied recite questions ambiguous and that dire were Essentially, major repeatedly.” lied were, responses inadvertent. Freeland’s and, through ity specu facts re-finding Third, appeal, the on direct California Su- regarding newly- assumption these lation and agreed questions preme were facts, concluding expla that Freeland’s found ambiguous no that Free- and found evidence defy That common sense.' is not our nations lying said no land was when she that member court saw Free- proper function. trial family been a crime victim. testify simply did not believe land Fourth, habeas, federal the district court system heavily judicial relies lied. Our evidentiary hearing accepting conducted very this sort of on the trial t'o make affirmed the trial new evidence and still viewing the tes judges, Trial determination. finding answered court’s that Freeland had senses, ahd, timony using-all first their hand refusing honestly, presume to bias. position to credibil are in the best determine just Accordingly, we have us not before reason, prop ity. appellate'judges For impartiality, but findings state courts’ also findings erly factual judge’s to trial defer findings court’s that are based on the district credibility our Knaubert under laws.' See Dyer prof- Goldsmith, (9th the additional facts that had since 722, 727 791 F.2d Cir. majority 1986) fered on which the now focuses (stating think of no sort “[w]e can found, As its attention. the district appropriate for finding that is more of factual provides none these additional facts is -a state court’s treatment than deferential determination.”). finding reason disturb the state courts’ majority to As the credibility concluded, responses. in her prior panel that Freeland was honest of the three Williams, 431, 449-50, “[sjimply put, See Nix there are substantial while (newly credibility, questions L.Ed.2d 377 as to her raised court, discovered evidence failed to demonstrate the state trial added findings developed findings judge, district adequately that facts were not of the court). clearly by Dyer to court’s been None district demonstrated special credibility credibility given def- findings as to Freeland’s were erroneous — required apply: erenee we are she be head, brother was shot several times in the lieved what she said was just true that time.” as the victims in this case. It1is true Calderon, (9th Dyer F.3d “[cjourts occasions, that on rare have been Cir.1997). here; Actual bias is the issue not willing presume juror bias where a or his juror whether she questionnaire lied on close relatives have personally involved or McDonough, voir dire. See 464 U.S. at in a involving situation pat- a similar fact 556, 104 S.Ct. 845. Tinsley, tern.” 895 F.2d at 528 (citing

cases). However, as stated in our discussion Implied II. Bias bias, of actual accept we the trial court’s finding that honestly believed that only majority bias, Not does the find actual her brother had been accidentally. killed he, they based on the assumed also find said, That the remaining similarity implied bias based on the circumstances. —death by gunshot not render this case ex- explicitly The Court has never held —does traordinary or extreme. presume that we infer or bias based on totality of the circumstances. We should While glance may at first it appear ex- not do so now. traordinary that experienced Freeland has tragedy crime, such majority so relies on case and much considering law where we alleged have said rate of implied that “bias could be crime neigh- or Freeland’s borhood, presumed circumstances, ‘potential though from the for substantial lamenta- ble, involvement; are surprising emotional adversely extraordinary. affecting In- deed, impartiality,’ experienced inherent Freeland has certain relation crime not ships.” as a victim Tinsley Borg, but 'also the family as' mem- (9th Cir.1990) Thus, ber of criminals. quoting pure United States v. would be Alls (9th Cir.1977). up, 68, 71 speculation However, say F.2d there was an inherent “potential inapplicable these are today’s cases substantial emotional case. involve- ment, adversely affecting impartiality.” those cases the court found that the rela Id. (internal omitted). at 527 tionship juror subject quotation of a of the trial Allsup, too close. In we held that two further, go would however. jurors robbery partial a bank trial were Now, years trial, sixteen after despite finding the district impar court’s appellate conduct in the court an inquiry tiality jurors employees because the were similar to a perjury trial impeach a different branch of that was robbed. a.bank former Freeland when in fact the state Allsup, Similarly, at 71. in United trial court conducted a hearing face-to-face Eubanks, States v. 591 F.2d 513 Cir. the time that the issue of Freeland’s bias was 1979), conspiracy trial, presumed heroin raised. where a did not disclose that two Finally majority’s holding requiring prison his children were for heroin- this “perjury inquiry” to sustain an related case, crimes. M at 516-17. In this bias finding clearly a new rule barred there is relationship. no such In order for Teague, join and I Judge and concur in necessary Freeland to have the relationship O’Scannlain’s ably dissent which sets forth to create the emotional involvement she Teague the application in this case. would have had to know and understand the I would affirm the circumstances and district court’s facts of denial of brother’s the writ corpus. death to of habeas be a brutal murder.- To the con trary, Freeland believed her brother’s death O’SCANNLAIN,

was an Judge, accident. Accordingly, she Circuit BRUNETTI, impermissible have no whom R.THOMPSON, DAVID substantial emotional KLEINFELD, Dyer’s involvement to Judges, join, case. Circuit dissenting. majority contends this is such an extreme extraordinary case that we must I respectfully majority’s dissent from the presume They bias. claim holding by we are not Teague foreclosed must presumed partial Lane, 288, because1 v. 1060, Freeland’s 109 S.Ct. 103

989 (1989), law,!’ interpretation prior or declaring that the reasonable 334 from L.Ed.2d interpretation, commit- hierarchy of California courts the “most reasonable” entire by implying ted error interpretation constitutional but also that “no other was bias.1 117 Id. at 1530. Because reasonable.” S.Ct. compelled by courts would not have felt state part- judges co-equal our State court are precedent (existing the con- on date protection of federal constitution- ners final) to the viction became conclude Although Congress granted rights.2 al has “implied-bias developed by rule” the corpus authority grant habeas relief us the Constitution, required by application the was prisoners, consideration our to state due by Teague. rule is barred system circumscribed role in the federal exercising prudent counsels restraint extraordinary power second-guess state forget, the Teague, Su- courts. Lest held, Teague, the Court

preme impose us not to Court instructed “[s]ubjeet exceptions,” to two narrow Gil dn court constitutional rules our state breth- 333, 339, 113 Taylor, more v. 508 S.Ct. U.S. by compelled existing pre- ren that were not 2112, (1993), 124 306 that “new con L.Ed.2d petitioner when a habeas finished cedent procedure rules of criminal will As stitutional raising his review. the claims direct Taylor, applicable not be to those cases which have explained in 508 Gilmore 333, 2112, 124 L.Ed.2d 306 beforé the new rules are an U.S. 113 S.Ct. become final reasonable, (1993), 310, 109 Teague good- Teague, “‘validates nounced.” U.S. at S.Ct. 489 interpretations precedents existing faith inquiry The federal court’s under 1060. courts,’ by state and thus effectuates steps. made Teague must be conducted in three finality of criminal First, States’ interest must court determine the federal comity convictions and fosters between feder- petitioner’s date on which the conviction became 340, al Id. at 109 Bohlen, courts.” S.Ct. Caspari f inal McKellar, 494 (quoting Butler v. U.S. 383, 390, 114 S.Ct. L.Ed.2d 407, 414, 108 L.Ed.2d 347 S.Ct. (1994). Second, “[s]urvey legal it must (internal omitted). (1990)) citation existed,” landscape then Graham Collins, U.S. 113 S.Ct. reviewing Teague, Under federal court “ (1993), whether a to “determine L.Ed.2d inquire ‘a state consid- must whether court considering petitioner’s] [the state court petitioner’s] his ering claim at time [the his became final claim at the conviction time final would felt com- conviction became by existing compelled prece would have felt pelled by existing precedent to conclude that the rule seeks [he] dent to conclude that required by [he] rule seeks was Con- ” Saffle, by the required Constitution.” Singletary, 520 stitution.’ Lambrix v. U.S. Finally, 488, 110 1257. “if the 1517, 1524, U.S. 117 S.Ct. L.Ed.2d 771 that, petitioner Parks, , determines habeas court (quoting Saffle rule, (1990)) of a new seeks benefit 108 L.Ed.2d 415 added). sought falls whether the relief say, must consider (emphasis That is order to exceptions to within one of the two narrow application of a rule is not conclude that 3 hambrix, 11 Teague, nonretroactivity.” barred the federal court must only that the rule “a 1524-25. determine not granted expressed Judge ery right Brunetti’s the constitution For the reasons . secured dissent, presumption the United States I would also accord findings made correctness to factual exception Teague applies 3.The first "limited” court, Juror Free- state trial conclude that " ‘forbidding punishment to new rules criminal actually biased. I land was not shown to be would, therefore, prohibit- primary rules [and] of certain conduót Judge of affirm Walker's denial category punishment ing of for a class a certain petition corpus. writ of habeas for of- of their status or of defendants because 151, 624, Netherland, 637, Connolly, 4 v. 521 U.S. Robb v. 111 U.S. fense.’” O’Dell

2. 1973, -, 1969, 544, (1884) ("Upon L.Ed.2d 351 117 S.Ct. 138 S.Ct. courts, 28 L.Ed. 542 302, Union, (1997) Penry Lynaugh, (quoting 492 equally U.S. with courts rests 2934, enforce, 330, (1989)). 256 obligation guard, protect ev- 109 S.Ct. 106 L.Ed.2d to and 990 560, 802,

Dyer’s conviction became final October 449 101 740 U.S. S.Ct. 66 L.Ed.2d 31,1988, (1981), States, the date on which the United States Remmer United 347 U.S. 227, 450, (1954), Supreme Court declined to review the Cali 74 98 L.Ed. 654 and S.Ct. States, 162, Supreme affirming fornia Court’s decision Dennis v. United 339 70 U.S. (1950)). 519, Dyer’s conviction on Peo direct review. See S.Ct. 94 L.Ed. 734 Dyer, 26, 209, ple Cal.Rptr. 45 Cal.3d 246 Justice in O’Connor concurred the Court’s denied, 934, 1, 753 P.2d cert. 488 U.S. 109 opinion Marshall, in Smith. Justices Bren- (Oct. 1988). 330, 31, S.Ct. 102 L.Ed.2d 347 nan, concurring and Stevens dissented. The surveying legal landscape In as it ex- dissenting disagreed and as Justices to date, necessary on that is to isted it deter- majority pre- whether the Smith in had fact “precedent” mine whether would have “com- possibility implied-bias cluded the that an pelled” a state court to conclude that required by In rule is the Constitution. “required” implied-bias,rule Constitution opinion, concurring Justice O’Connor wrote 494 majority. Saffle, at applied [majority] express [her] “to view that majority purports 1257. S.Ct. The opinion ‘implied not foreclose does the use of rely on precedent to three sources of appropriate bias’ in circumstances.” Id. at support its conclusion that (O’Connor, J., concurring). S.Ct. (1) implied: be decisions of the States United Marshall, However, joined Jus- Justice (2) Court; Supreme decisions the lower Stevens, expressed tices Brennan and a dif- courts; law. federal the common majority of the opinion: ferent view “Accord-

ing majority, requires the Constitution only given that the opportu- an II defendant nity prove actual bias.” Id. at survey Supreme Our of the decisions of the (Marshall, J., joined by S.Ct. 940 Brennan begins Phillips, Court Smith v. Stevens, JJ., dissenting) (emphasis add- L.Ed.2d ed). Smith, the Court whether a habeas examined petitioner’s right, jury impartial Teague purposes, to an For it little matters . been violated because a dissenting submitted whether O’Connor Justice or the application employment investigator for as an in Smith in- Justices arrived at the correct Attorney’s diming terpretation the District' majority opinion; Office what petitioner’s matter, trial. quite simply, See id.' at S.Ct. does is that reasonable petitioner “[gjiven jurists 940. The argued disagree. posit ‘could I should what propensity self-justification human ... point: a most considered unremarkable impute Marshall, jurors Brennan, the law must bias to [such Justices a] are Stevens . position.” Id. at 940 jurists. reasonable Because could read Supreme “disagree[d],” explaining opinion Court majority of the United States Su- “long remedy allega preme held that the precluding possibility juror partiality hearing implied-bias rule, tions of is a in which a constitutional I cannot opportunity prove conclude, my the defendant has an majority unlike colleagues, Id.; 215-17, jurists actual bias.” see also id. at 102 all compelled reasonable would be Florida,- (discussing S.Ct. 940 Chandler locate a rule in the such Constitution.4 second, circumscribed," excep- suggest applies "even exceptions more either of these " applies here. tion 'watershed rules criminal procedure implicating the fundamental fairness disagree strongly majority's ” 4. with the conten- accuracy proceeding.' of the criminal Id. bearing tion that "Smith has no on our case Graham, (quoting U.S. at majority tacitly unless we assume the what 892). As the Court observed Gra- Maj. Op. doing.” Justice accused it Marshall ham, precise scope "[w]hatever of this [sec- Rather, bearing Smith "has no on our exception; clearly apply only ond] it is meant position case” Justice was un- Marshall's small requiring to a core of rules observance That it reasonable. was not unreasonable procedures implicit those ... are many the fact demonstrated other reason- Graham, concept liberty." of ordered jurists joined able since Justice Marshall reading S.Ct. 892. The does not Smith hold that the re- Constitution

991 Echegoyen, v. 799 F.2d United States jurists [in have been com reasonable Would (9th Cir.1986) 1982, ], independent 1271 two change minds between pelled to their decided, 31, progress challenged in [for be the and October searches when Smith dictum, as the 1988, Dyer’s admitted] final? to be conviction became evidence when evidence.”); challenged look to case admits question, first To answer 42 Supply, Elec. F.3d McDonough v. Amateur Supreme Hutchison Court’s decision (7th Cir.1994) 1037-, Greenwood, authority (“Any for 464 1047 Equip., Inc. v. U.S. Power 548, 104 [Donnelly v. 845, denying prejudgment In interest 78 L.Ed.2d 663 S.Ct. four-justice (7th Inc., 402 Freight Sys., 874 F.2d plurality a stated Yellow McDonough, Cir.1989) dicta, Donnelly that, thus is since the ] a new trial on account in order obtain bias, district court’s denial of juror party “a must first demonstrate court reversed the interest.”); Helmsley, honestly a States v. 985 to answer mate United that a failed (“The (2d Cir.1993) 1202, dire, F.2d 1207 state- then further rial voir (2d Scully, 1192 response ment in v. 826 F.2d [Mills would have show that a correct Cir.1987), deprivations challenge regarding potential provided valid for a a basis 556, process] was since Mills reversed at 104 In a due dictum cause.” Id. S.Ct. Blaekmun, corpus.”). joined of writ of habeas concurring opinion, grant Justice O’Connor, are Supreme opinions not by observed Dicta in Court Justices Stevens Sanchez, 452 v. U.S. plurality opinion binding, did not “foreclose” see McDaniel that the 130, 2224, 141, may implied. 101 68 L.Ed.2d 724 possibility Id. S.Ct. that bias be States, (Blaekmun, J., (1981); 550 556, 104 joined by Ayala F.2d v. United at S.Ct. 845 (9th Cir.1977), O’Connor, JJ., 1196, certainly concurring). are 1200 Stevens and compel state courts to conclude concurring opinion, Bren insufficient yet another Justice Marshall, by nan, by expressed required rule is the Constitution joined that a Justice Lambrix, S.Ct, 117 at plurality’s Teague. disagreement analysis, under See (authority supports point “in may 1525 dic- arguing that courts consider whether “ “any suggesting ‘eontrol[ ]’ ‘dictate[ ]’ tum” not there facts in ease does are , Teague purposes). . conclusively presumed.” . should be result” bias J., (Brennan, 558, joined 104 845 Id. at S.Ct. McDonough its Between decision Marshall, J., concurring). by directly 1988, Supreme Court did pot compelled courts have State would felt Thus, implied the issue of bias. address opinions by concurring to conclude that these Supreme could not Court decisions implied as a matter federal bias “compelled” courts to' conclude state McDonough reversed the law. The Court requires majority’s that the Constitution holding that new trial was Tenth Circuit’s implied-bias rule.5 bias, see Mc required on account 845; at 104 S.Ct. Donough, U.S. Ill therefore, concurring both statements that, hold apparently opinions were dicta regarding “Supreme there is necessary irrespective whether holding. See United (9th rule announcing” a constitutional Court case Boatwright, 822 F.2d States J.) (“The Cir.1987) is not barred procedure, rule requirement criminal (Kennedy, long [Supreme opportu line of quires only given [a] ... but from case defendants See, nity prove e.g., authority....” Id. at Court] United States actual bias. (4th Cir.1985); Supreme Malloy, "long 981-82 such line” of 1130. No Lockhart, recognize authority compelled jurists 741 F.2d Cir. the ma- Irons v. McMullen, 1984); Rogers implied-bias jority's rule at the time con- (11th Cir.1982). "long line” Id. If became such viction final. Smith, exist, (it did not see ever existed cases)), 215-17, (collecting S.Ct. 940 by not affected 5. This conclusion is Saffle, certainly Black, was severed Smith. Stringer U.S. Court's statement (Teague (1992), asks whether 117 L.Ed.2d 367 compelled “exist- have felt court would application of a is not barred that the rule added). (emphasis ing precedent-.”) emerges single Teague when it not "from Teague deeply if by “deeply it is “so embedded the court does not believe to be embed- process everyone that takes it pro- fabric due fabric” of ded the some constitutional granted.” Maj. Op. thereof.) for at 984. am unable vision, combination or If the Su- agree. Teague A to rule is “new” under preme Court intended the result reached considering peti “a [the unless state court by majority, simply it would the have omitted claim conviction tioner’s] at the time his be “by existing precedent” the words from the compelled by final came would have felt ex Teague inquiry, and would have that a stated isting precedent to conclude the rule by Teague rule is not barred courts petitioner] required by seeks [the the compelled felt would “have to [ ] conclude O’Dell, at-, Constitution.” U.S. petitioner the rule the was re- seeks (holding at 1973- is not that rule “new” quired by Saffle, the Constitution.”7 But see Lambrix, met); if this only standard is at 110 S.Ct. 1257 asks (Teague language at (using 5.Ct. same to de whether state courts would “have com- felt standard); Caspari, scribe 510 U.S. at pelled by existing precedent to conclude that (same); Baffle, 114 S.Ct. 948 494 U.S. at petitioner] required the rule seeks was [the (same). Supreme 110 S.Ct. 1257 the As Constitution.”) added). by (emphasis the repeated Teague the Court’s formulation of clear, inquiry Teague only has made asks not “deeply-embedded-in- Even if were a there (1) (or by required deeply whether a rule is exception Teague, Supreme to the-fabric” the in)6 Constitution, but embedded the also summary juror-bias of its Court’s decisions precedent existing compelled whether Phillips Smith v. makes it clear that it would petitioner’s conclusion the time the con stated, apply not here. The Smith Court became viction final. pertinent part: By “existing precedent,” the Court could Court, argument respon- before this not have meant the Constitution itself. Oth- ... dent contends that a cannot court erwise, Teague inquiry would possibly ascertain impartiality of a (that is, Teague rendered circular would ask juror by relying solely upon the testimo- “the compelled whether Constitution the con- juror ny in question. Given clusion that the petitioner rule the seeks is propensity human self-justification, for Constitution”), required but also respondent argues, impute the law must compelled toothless. Even if a rule was jurors in position. bias to Smith’s We Supreme decisions, a federal court disagree. always Teague would be able to circumvent long remedy court has This held that simply concluding the rule had al- allegations ways partiality for is a “deeply embedded the fabric” (Indeed, hearing in which of the Constitution. it is the has the rare defendant in which a applies opportunity prove case federal court a consti- actual For bias. procedure tutional rule of criminal example.... majority Hosp., is unclear It whether the would create Kaiser n. Found. Cal.3d 110 & separate Teague inquiry rules that are (1971) (intentional Cal.Rptr. 485 P.2d 1132 Constitution, "deeply op- embedded in" the grounds on voir dire concealment constitutes posed merely "required by” to those that are trial). forget, new Lest we federal we sit as a entirely Constitution. Such a distinction is with- courts, review in habeas of the California support Teaguejuris- out Court’s (as no bias which found a matter either state prudence. law) in this federal case. majority's argument

7. The no reasonable that, unlikely majority Even in event as the jurist impute automatically would fail bias requires suggests, federal Constitution itself (the majority's jurors parade of horrible (in impute jurors bias courts to absence victims, ex-wife, Dyer's mother of one of the concealment), showing of intentional we arc etc.), Attorney, Op. Maj. District see by Teague applying barred nonetheless from First, irrespective flawed for two reasons. implied-bias existing precedent rule unless com- fair," id., they had whether all "sworn to pelled Dyer's that rule at the (unlike Freeland) time conviction hypothetical jurors these clearly Juror point simply application became final. not have survived fails precedent. California's compelling own laws. Weathersv. such 1982) (“The’ Smith, 215, 102 Supreme v. Court Smith (empha [in 940 455 U.S. at added). Significantly, implied argument Phillips rejected the Smith Court the bias sis ] by proceeded support view sum to process requires only then held due that jurispru juror-bias marizing the Court’s a opportunity post- have a defendant the dence, v. including its decisions Dennis bias.”); prove actual United hearing trial to States, 519, 162, 94 U.S. 70 S.Ct. United 339 (8th 220, Whiting, 223 538 F.2d States States, (1950), Remmer v. United L.Ed. 734 Cir.1976) (“Where upon attack is made an 227, 654 L.Ed. by integrity alleged of the trial reason of the Florida, (1954), Chandler juror failing the a part misconduct on of (1981).8 66 L.Ed.2d 101 S.Ct. pertinent to the of disclose information issue majority’s sketch of Even if the historical proof of the defendant’s burden prejudice, juror-bias more accu cases were somehow specula- as a of must be sustained not matter by provided the Smith rate than that Court tion, reality. No as a demonstrable dem- not), (I respectfully that it is reason submit knowing onstration of intentional or with- judges sitting in were entitled able state holding by juror] of is made [the information interpretation rely majority’s on the Smith here.”). contrary major- Finally, what the precedent proposition implied for of the ity suggests, nowhere does this dissent take constitutionally required. Such bias is not position the a on whether Constitution actu- certainly not judges state could rule; rather, ally requires implied-bias an it expected interpretation own of to foresee our jurists simply reasonable observes that could precedent, decreed a decade later required at such a rule was not conclude that 1998! Dyer’s time conviction became final. that,“[n]o opin- majority’s contention majority’s Buried beneath “fabric Republic- ion in two centuries of the process” enduring lies one relevant fact. due exeept suggested the dissent in our case-has is, precedent not Supreme That Court might lawfully a criminal defendant implied-bias compel conclusion that an bias,” by jury by implied a convicted tainted by required rule was the Constitution at Maj. point three Op. at is beside the First, final. assuming that the time conviction became Su- reasons. Cf. (9th preme Tinsley said that “the Borg, Court had not Constitu- Cir. rule,” 1990) (“The require implied-bias an it tion does not Supreme explic has never Court certainly follow that the Court has does not adopted rejected the im itly doctrine of require an said that “the does Constitution bias.”). plied rule”; only proposi- implied-bias the second Second, Teague. important tion under IV precise words

while no court has uttered ju- by majority, many used reasonable whether, as of the date We next examine concluded, light existing pre- rists have final, the decisions Dyer’s conviction became cedent, that defendants must. demonstrate courts have com- of the federal lower See, e.g., a actual new trial. bias obtain im- to conclude that an pelled state courts (8th Lockhart, 741 F.2d Irons v. constitutionally required. plied-bias rule Cir.1984) (“In Phillips ... the Su- Smith reasonably have cburt could Because a state petitioner who seeks preme held that perhaps con- should have concluded—and corpus allegation relief based on habeas any by lower bound cluded—that was bias, prove must actual either'in bias interpretation United federal court’s hearing, and that state court or court federal matter, any it follows States Constitution impute based on the cannot federal court decisions that lower Rogers v. petitioner’s allegations.”); bare fortiori McMullen, court with would not have bound Cir. hearing],” partiality id. at is'[an actual bias juror-bias these dem- 8. As discussion of cases its onstrates, partic- limited Court's that it Smith statement allegations ‘long remedy ular factual situation. held that specific (Brennan, J., respect joined by L.Ed.2d Marshall, JJ., dissenting). bias. White and 1988,9 Further, As of at least three courts of federal substantial of the state with, that, respect issue, appeals concluded courts had addressed this includ law, California’s, interpretation ing federal state courts had concluded that are bound decisions of United were not bound decisions lower Court, questions. States and not the deci federal courts on federal Com pare, e.g., lower Myers, sions of the federal Cowan v. 187 Cal.App.3d courts.10 (10th 985, (1986) Crisp, 1351, 968, (“[T]he Bromley v. 561 1354 Cal.Rptr. F.2d 232 299 Cir.1977) (“[T]he courts, may Oklahoma Courts ex of decisions the lower federal even on press differing questions, their views on retroactivi binding the federal are not on this court.”); Webster, ty problem questions 418, or similar federal until State v. 114 Wis.2d 4, by (1983); guided binding we are all of the decision 426 n. 338 N.W.2d 474 State v. Court.”); Supreme Glover, 283, 287, ex rel. 60 App.2d United States Ohio 396 N.E.2d Woods, 1072, (1978); State, 106, Lawrence v. 432 F.2d 1074 Md.App. 1064 Greene v. 11 (1970) (“The (1971), Ap 110, federal Circuit of 273 Handy Courts A.2d 830 v . peals and, law, Co., respect to Goodyear 211, federal the state Tire & Rubber 230 Ala. resort, (1935); subject super courts of last are the 160 530 So. Kuchenmeister v. Los S.L.R., visory jurisdiction' 116, of Supreme Angeles the Court of & 52 172 Utah P. 725 are, however, They the light United States. as to In authority, of this line of States, the laws of the reasonably United co-ordinate court could state have concluded courts.”) v. (quoting Iowa Nat’l Bank Stew was not by any that it bound the decisions of art, 1229, (1930)); 445, 214 232 Iowa N.W. 454 lower federal court on federal constitu (4th 804, Owsley Peyton, v. 352 805 Accordingly, F.2d tional issue. such lower federal Cir.1965) (“Though poli state “compel” courts court decisions could not cy reasons follow the decisions of the Court within meaning Teague. courts the of Com state, Delo, Appeals 944, of circuit pare whose includes their v. Clemmons 124 F.3d n. 955 (internal so.”) (8th Cir.1997) obliged to are not do 11 (assuming deciding without omitted). Although Supreme citation [Supreme] says that “when the ‘firmly Court had, 1988, adopted Court of by precedent,’ as neither nor Supreme dictated it means rejected position, precedent”); several individual Jus Singletary, v. Glock 65 (11th 878, Cir.1995) (en banc) expressed tices had a similar view. See 885 Stef 3, (courts 452, Thompson, v. 415 n. appeals particular 482 94 of do not “dictate” fel (1974) 1209, (Rehnquist, S.Ct. 39 L.Ed.2d 505 Teague rule to state purposes), courts for J., C.J., joined by Burger, concurring); 976, Myers, Perez with v. Jiminez 979-81 (9th Cir.1994) Ledesma, 82, 125, v. 401 U.S. (using Ninth Circuit decisions Arizona, Yniguez 9. We must determine whether a state court 939 F.2d 727 Cir. would bound 1991), have felt lower federal court years Dyer's decided three after convic upon interpretation decisions based a reasonable final, tion became we stated in dicta that "[d]e- existing precedent Dyer's at the conviction time of spite the authorities that the view take that the became To hold a decade after fact final. ignore state courts are free to decisions of the by precedent that state courts were bound questions, federal lower courts on federal jurists reasonable would viewed not have have serious doubts as wisdom of this binding Teague turn would be to on its head. As However, vacating view.” Id. at 736. our Supreme the land, Court stated in O'Dell Nether case, Supreme later decision in that Cour 521 U.S. 117 S.Ct. L.Ed.2d t binding characterized our of the discussion effect bottom, (1997), Teague ... "[a]t doctrine of lower federal court decisions on state courts reasonable, good-faith interpretations 'validates English as "remarkable.” Arizonans existing precedents of made state courts even for Official Arizona, 520 U.S. though they contrary 1064 n. are shown to be to later (1997) (quoting (citing decisions.'" Id. Butler v. L.Ed.2d Lockhart v. McKellar, 407, 414, Fretwell, 364, 375-76, 494 U.S. 110 S.Ct. (1990)). Teague L.Ed.2d 347 It "val follows (1993) (Thomas, J., concurring) 122 L.Ed.2d 180 reasonable, good-faith interpretations idates of (Supremacy require Clause does not slate courts existing precedents” concerning fect of binding ef rulings appeals to follow federal courts Butler, precedents.” "existing law)). questions of federal 414, 110 S.Ct. 1212. interpretation [of no other ex- “totality asks] whether support conclusion that reasonable.”). precedent] isting under rule was not “new” circumstances” reason, errs For this Teague). Burr, 25 F. upon United States relying V (D.Va.1807), a federal district Cas. Teague opinion, proposition court time As conviction became inapplicable. final, implied-bias the conclusion that an rule required the Constitution was not Indeed, assuming all reasonable (1) compelled by either: the decisions concluded, judges state court Court; decisions authority, that contrary weight lower federal courts.

they were bound to follow lower federal Today precedent, Teague would still dictate that the court holds'that there is third authority: source Sir Edward recognize judges compelled compelling were not such Case, Dr. Coke’s dictum in Bonham’s 77 the time implied-bias an rule. At (C.P.1610).11 Rep. Maj. Eng. 652 See final, the federal courts of conviction became likely! Op. at Not Our own 8601. implied split appeals on the issue of were stated, sup- .“authority has Eubanks, Compare United States bias. in,dictum” ports point the does not “‘eon- Cir.1979) (holding that 517 Teag- the result” under trol[ ]’ ‘dietate[ ]’ law), implied of as matter bias could be Lambrix, 117 ue. See . Malloy, 758 with United States excep- hardly have Court could intended (4th Cir.1985) (rejecting implied-bias 982 n. 6 Teague-based rule,.which.apphes tion to this in which theory collecting cases .other opinions, for Court’s own the the so); see also federal courts done lower seventeenth-century English dictum of a v. State Bd. Reorganizers, Debtor Inc. of judge.. common-law Cal.App.3d Equalization, 58 (“As Cal.Rptr. between deci respectfully dissent. [those] Ninth sions Circuit law], primacy no [on Fifth Circuit federal former, persuasiveness so

inheres upon conflicting depend views must validity arguments made there

in.”). judge sitting A court reasonably followed those lower

could that had held that a defendant

federal courts actual bias to obtain new

must establish

trial; perforce, judges were not state court

compelled adopt implied-bias rule. Lambrix, (“[Teague 117 S.Ct. at 1530 Constitution, opinion 54 U. Chi. states: written L.Rev.

11. (1987). law, implied be traced In the common bias can Maj. Op. ]” how such a "old[ at 984. No matter way back to Sir Edward Coke’s dictum all id., ."rule," have been state courts could not that man shall be in Bonham's Case no precedent compelled by that it was to conclude Case, in his cause. See Dr. Bonham's own Lambrix, required by the Constitution. See (C.P.1610). Eng. Rep. pedigree This at 1524. The list of "old rules” whose neatly disposes argument state’s compelled by application is not state courts barred bias would be "new rule" precedent (holding that rules are such constitu- Lane, Teague limitless, tionally Commandments, may e.g.: required) The Ten Implied L.Ed.2d 20:7-17; "If a man Exodus single histoty oldest rule indeed be see. man, they review, destroy eye de- another shall judicial Case is often as Bonham’s (c. stroy § eye,” his Code 196 Hammurabi’s as the first case in which identified B.C.); you would have duly and "Do unto others as legislative act. struck down See, enacted you,” e.g., Sherry, do Matthew 7:12. The Founders’ Un- them unto Suzanna

Case Details

Case Name: Alfred R. Dyer v. Arthur Calderon, Warden, of California State Prison at San Quentin

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 6, 1998

Citation: 151 F.3d 970

Docket Number: 95-99002

Court Abbreviation: 9th Cir.