Brian Parker v. Larry Small

PARKER, Petitioner- Brian Lee

Appellant, SMALL,

Larry Warden; Edmund G. Jr., Attorney

Brown, General California, Respondents-Ap-

State of

pellees.

No. 10-17128. Appeals,

United States Court of

Ninth Circuit. Submitted

Argued and Oct. Dec.

Filed Sandler,

Bradley S. Law Office Brad- Sandler, Hills, CA, ley Beverly S. petitioner-appellant. Baskind, Attorney

David M. Deputy General, Francisco, CA, San re- spondent-appellee.

1144 ground of Appeal and Court WALLACE

Before: J. CLIFFORD THOMAS, instructions Judges, judge’s supplemental Circuit trial R. SIDNEY ALBRITTON, III, The jury H. were coercive. the deadlocked and WILLIAM Judge.* rejected argument Appeal District of Senior Court judge, affirmed the trial and the Cali- Opinion; Concurrence PER CURIAM Par- review. fornia Court denied by Judge THOMAS. petition in the ker then filed a habeas District for United States OPINION pursuant Northern District of California PER CURIAM: § 2254. 28 U.S.C. accused to have his case right The of an the writ of The district court denied peers his a hall- jury heard before did, however, corpus. It habeas justice system. The of our criminal mark Parker’s appealability on certificate paramount importance is of jury’s verdict trial claim concluding the accused’s case. Accord- jury charge coercive. was We permitted ingly, Supreme Court has court, district and we affirm the denial judges give extra instructions trial corpus. of the writ habeas juries encourag- hope in the deadlocked This decision to reiterate us coercing, jury ing, but verdict. under the this Court’s role Anti-terrorism 492, 17 v. 164 Allen U.S. (“AED- Penalty Death Act Effective (1896); 41 L.Ed. 528 S.Ct. PA”) framework, habeas 28 U.S.C. 98 Phelps, S.Ct. 2254(d). § supervisor We sit here as a Packer, (1988); Early L.Ed.2d courts, of state but enforcer 3, 123 154 L.Ed.2d 263 standard. federal AEDPA’s reasonableness curiam). This us case reaches hold, Accordingly, approve not that we granted Appealability on a Certificate of given by of the instruction by the United States District Court court, necessarily that we trial or even Northern District of California on is- have as the would made the same decision the California Court sue of Appeal, sitting in its California Court of acted estab- place, but California Court by the lished federal law as determined review Appeal’s decision meets Supreme Court of the United when States standard AEDPA. supplemental jury charge it held that the petitioner’s not coercive. BACKGROUND Parker, Brian petitioner, Lee At the of Parker’s weeks close six Superior of San convicted on the law and instructed California, County, Mateo murder and role, and The fol- began deliberating. its Parker aggravating enhancements. jury’s lowing rendition of the deliberation parole of life sentence Ap- is drawn from the California Court of for the murder conviction and a sentence peal’s decision: years of 37 to run consecutive to the life deliberations, day Parker sentence the enhancements. On third stating, his sent a note to court appealed conviction the California * Alabama, Albritton, III, sitting by designation. H. Sen- Middle The Honorable William Judge ior District for the U.S. District “We can’t come to a decision.” The evidence leads to a not guilty verdict. inquired court as to whether the We are deadlocked.” counts, agreed had In response note, to this the court in- which the responded, “no.” The structed the verbatim from an in- court returned a to jury note which struction upheld People v. Moore read, complexity length “Given the and Cal.App.4th 1105, 1121 [117 trial-I you Cal.Rptr.2d of this believe that should 715]: your continue deliberations to if see I am going “‘What to right now, do progress can be made in reaching a gentlemen, ladies and is I have further day, decision.” Later that jury sent instructions and give you. directions to note, read, the court another my which “Re- It has been experience on more than all gretfully, that we will one jury occasion that a which initially reported be able to come to a it was unable unanimous deci- to reach a verdict ultimately responded, sion.” The court able to “It does arrive at verdicts on one or more appear you have had counts before it. time to you To assist in your fully and further delibera- frankly consider the evidence tions, going I’m to further you instruct open with fully frankly minds and and as follows: interact with each other try and reach goal jurors Tour verdicts. This is process [¶] should tobe reach a fair impartial you required by you which are verdict if law to en- are able to do so based solely If gage. there something further that evidence presented and without regard for the court can do to you, please assist consequences your Otherwise, regardless advise me. please continue long how it takes to do so. your deliberations.” Still later the same your ‘It is day, jury duty jurors requested and to carefully received consider, weigh and further evaluate all of instructions on the definition evidence “reasonable doubt.” Then the dis- sent your cuss views regarding evidence, another note the court indicating that and to listen to and consider the it was views of still deadlocked. The court re- your jurors. fellow evening cessed for the and asked the your to reflect on the ‘In the evening case that course of further delibera- tions, you and to return following should not morning. hesitate to re-ex- your amine resumed own request your deliberations the views fol- day, fellow lowing again but re-examine sent the court a theirs. You should not note hesitate to indicating change you view remained dead- you once held if are locked. The note convinced it is explained, “We have wrong or to suggest says change one who that because he be- their if you views are they lieves all convinced prosecution lied, are witnesses wrong. he cannot find the guilty-ever. defendant

He is unwilling to ‘Fair examine other evi- and effective deliberations re- quire dence. He is a frank wed to the statement and forthright exchange prosecuting attorney views. made in ‘If closing,

you believe prosecution witnesses, ‘As I previously you, instructed each of you must find the defendant guilty.’ He you must decide yourself, the case for unable, though even we have asked you should do so after a full times, many explain to us how the complete consideration of all of the instructions. CALJIC jurors. It is fellow your with juror. of a 1.00 defines the duties deliberate jurors to duty as your on the at a verdict renders must be arriving goal ‘The decision You so without violence and the law. fact[s] can do you based facts have been judgment. determine what must your individual in the from the evidence proved and the defendant People ‘Both the A from other source. trial and not judgment individual entitled by the evidence something proved fact is juror. each by stipulation. you, you have instructed I previously ‘As ‘Second, you apply must the law state your to conduct discretion the absolute you facts as determine you to way you ap- any deem deliberations way, your in this arrive them and you that May suggest I since propriate. verdict. a able to arrive at verdict have been chosen, as I you accept have and follow the law methods that You must using the you change you regardless the methods it of whether to state to you consider tempo- anything law. If con- following, at least with the you have been attorneys in by law said try cerning new methods. rarily and any time or at other arguments their to consider you may wish example, ‘For in-my during conflict[s] jurors lead the discus- different having law, you must follow structions time, you may period sions my instructions. reverse role experiment with wish jury’s duty having those on one side 17.40 defines ‘CALJIC playing you make argue and the other The decisions present deliberate. an issue This based on and vice versa. this case must be position side’s understand in the trial and the instructions you to better might enable mat- These positions. given by the Court. the other’s requires you to dis- ters this instruction you should consider ‘By suggesting reaching a ver- purpose cuss for the of delibera- changes your methods dict. tions, dictating I am not I want to stress an which conduct 17.41 is instructing you as to how to ‘CALJIC ap- should you how merely I find recommends

your deliberations. them task. proach to do whatever may productive find juror has a full necessary ensure each keep in mind the recommen- You should his or express opportunity and fair when suggests this instruction dations understand instructions, views and consider and her considering the additional jurors. the views of the I made suggestions and have comments you. in- in the instructions now you reread CALJIC suggest T also 1-A, suggestions hope my comments page 1.00 on struction 40, you. assistance to page may on have some instruction 17.40 CALJIC page 17.41 on your CALJIC deliber- to continue You’re ordered your pertain to 41. These instructions you If have other at this time. ations jurors and make recommenda- concerns, duties as requests or questions, you should deliberate. tions on how you report desire communications me, writing those in please put a trial integrity of ‘The you with. my provided form bailiff has during at all times their delibera- by your signed them and dated Have required tions conduct themselves please notify then II. The California foreperson and De- ” cision bailiff.’ Clearly established federal law day jury requested Later provides “[a]ny criminal defendant next copy of this instruction and the ... tried entitled to the morning it reached verdict. body.” uncoerced of that Lowen to the trial which also sent a note Phelps, 484 field read, you having “Thank us continue (1988). 546, supplemen A to deliberate.” jury charge encourage tal a deadlocked Parker, People v. 2008 WL *5-7 try to reach jury to a verdict is not coer 2008). per cive se. Allen v. (Cal.Ct.App. May 41 L.Ed. 528 (approving charge”); the “Allen Lowen ANALYSIS field, supra, 484 U.S. at 108 S.Ct. 546 (“The continuing validity this Court’s I. Standard of Review beyond observations in Allen are dispute district deni We review the court’s ”). However, ... when faced with a claim of petition of novo. al Parker’s habeas de coercion, a court reviewing must “con (9th Duncan, 893, 463 F.3d Yee 897 supplemental charge given sider the by the Cir.2006). claim adjudicated was Parker’s ‘in trial court its context and under all the ” of by the merits the California Court Lowenfield, supra, circumstances.’ 484 Therefore, under the Anti-terror Appeal. 237, (quoting U.S. at 108 S.Ct. 546 Jenkins Act Penalty and Effective Death ism v. United 380 U.S. (“AEDPA”), may not applica his 1059, (1965) S.Ct. 13 L.Ed.2d 957 adjudication tion “unless the of the claim— curiam)). (1) in a that resulted decision was Lowenfield, judge polled In the trial the

to, or application involved an unreasonable jurors to what each juror individual learn of, law, as de established thought ability about his or her to reach a Supreme termined the Court sentencing in a capital recommendation (2) States; in a or resulted more given case time to deliberate. 484 an deter that was based on unreasonable 234-35, Only at 546. 108 S.Ct. one evi light mination of the facts juror that felt further deliberation was un- pro the dence State court fact, necessary. learning After that the 2254(d). § ceeding.” “Clearly 28 U.S.C. that in judge reminded the the ab- gov law” “the established federal means sence of unanimous recommenda- tion, court erning legal principle principles impose set the would sentence of Imprisonment benefit “Life Supreme forth the Court at the time Probation, Parole, Suspension of Sen- state renders its the court decision.” Id., Thirty tence.” 108 S.Ct. 546. minutes Andrade, 71-72, 63, Lockyer v. 538 U.S. later, the returned with verdict (2003). 1166, 155 In 123 S.Ct. Id., sentencing the defendant to death. words, inquiry the our is whether 108 S.Ct. reasonably ap Court of governing legal principles the plied In the of the habeas upholding denial by the Court when it deter Supreme writ, Supreme found that supplemental mined that less instruction was coercive Lowenfield Allen not than the instruction because the coercive. determining the trial minority dent1 for urge the judge specifically did single of a holdout knowledge majority’s view or jurors to consider Af- coercive. the Moore instruction dur- made their own view reasonableness precedent, this Circuit’s looking at Id. at 237- ter charge. supplemental ing the circum- 108 S.Ct. presentation surrounding the fact that stances similarly unpersuaded instruction, Ap- the California Court identity knew judge supplemental concluded peal de- continued disfavored single who jury. not coerce the did not did because the liberation felt about the individual know how that Ap Court of long as the California As the Court deter- case—which merits of the facts, and considered reviewed all the peal inquiries. “clearly separate” mined be charge in its context and supplemental the Court 546. While Id. at holding all the circumstances under lapse time between noted that short coercive, then, in the absence charges and supplemental presentation of authority contrary, Supreme Court suggests awith jury’s return give deference to the Cali this Court must coercion, part of the just fact is one Appeal’s judgment. fornia Court analysis the circumstances totality of the Visciotti, Woodford determining Supreme Court (noting 154 L.Ed.2d Id., 108 coercion. presence 2254(d) “highly § ais that the 28 U.S.C. Ultimately, S.Ct. 546. evaluating state- deferential standard charge, that the found which demands state- rulings, court judge’s of the knowl- even in the context given the benefit of the court decisions be to continue juror’s desire edge about each (citations doubt”) quotations and internal lapse the short time be- deliberating and omitted) curiam). opin offer no We verdict, not co- tween instruction have reached to whether we would ion as the Adhering to ercive. reviewing the same result had we been ask if the Califor- guidance, we Court’s directly. only hold this case We totality Appeal looked at the nia Court of not Appeal’s decision is California Court determining in circumstances to, an unrea and does not involve at Parker’s the instruction of, clearly application established sonable (2) if its determina- trial coercive and law as determined objectively reason- that it was not was tion of the United States. able. Curry Distinguished III. Smith that the It clear from the record appropriate to distin the We also find Appeal considered California Court v. Cur present case from Smith potentially guish coer Moore instruction and its (9th Cir.2009), cert. de ry, all 580 F.3d 1071 in context and under cive effect — nied, -, The California Court of circumstances. (2010), by this a case decided began by finding that the Moore Appeal to the facts somewhat similar upheld and Circuit with previously had been Smith, panel In a divided case. present Then the Court endorsed in California. habe- grant court’s the district prece- of this Circuit’s affirmed considered a line relevant principles contained in Appeal applied did Although California Court of Early precedent. v. Pack authority Supreme Court any Supreme in its not cite er, decision, supra, U.S. at 123 S.Ct. 362. reasonably whether it ask relief, in judge go Court of The Parker’s trial did not holding that California as nearly encourage as far to a trial upholding decision reach a verdict as the trial in judge did objectively unreasonable was an actions Smith. Several factors that led this principles governing legal application in court to the writ Smith absent in Smith set forth Lowenfield. example, from case. For it is this while from this case. distinguishable Parker’s trial judge true that knew case, here, In the Smith split, juror that one in were knew both the division of judge acquittal, favor of and that that one juror’s for a single the reason holdout believability was concerned about the to convict. reluctance 580 F.3d witnesses, prosecution’s did judge however, went be- judge, The Smith not, Smith, trial judge as did the direct- select yond an Allen to revisit ly juror’s address holdout concerns of evidence from the and to pieces during or at- highly fa- explain way evidence tempt light to recast evidence prosecution. judge Id. vorable more prosecution. favorable evidence knowledge this that the did Whether or the California highlighting directly responded to he was Appeal was correct to conclude that there fact, juror’s In he the holdout concerns. here, was no coercion its decision did interroga- for the certain replayed objectively appli- involve an unreasonable conviction, and, support that would tions governing cation principles so, sent tran- asked to do in Loivenfield. interrogations of those back to the scripts said panel majority room. Id. The CONCLUSION recasting judge validity The facial of the Moore instruc- essentially “substituted the issue. tion is not at Parker contends to the manner and substance of Court of thereby de- denied[the deliberations objectively was an applica- unreasonable un- right his constitutional fendant] tion of established federal law as jury.” at 1084. coerced Id. For determined Court. it took the than one hour Lastly, less reasons, the aforementioned we hold guilty with a verdict after to return Accordingly, it was not. the district supplemental these instructions habe- petition court’s denial Parker’s judge. at Id. 1083-84. corpus facts, AFFIRMED. all of these found

Given Smith that the California Court of deci- Appeal’s THOMAS, concurring: Judge, Circuit judge’s presentation sion that fair,” was “scrupulously evidence was ob- Under the circumstances unreasonable, accordingly, so jectively case, join my colleagues affirming too the Court of peti- the district court’s denial of Parker’s lack coercion. Id. regarding corpus. I separately tion for habeas write “[ajbsent Smith concluded that emphasize factors, different might reach a issued in could these this case them, represents unconstitutionally effect conclusion. With case have an coercive contexts, any in coercive instruction of in other even under the deferen- the most imposed by cases we Id. tial of review AED- coercion have reviewed.” standard of the Moore habeas review PA. Federal cases, one, in this in future the instruction rest on evaluation

will circum- under all the

“in its context Phelps,

stances.” Lowenfield 98 L.Ed.2d 108 S.Ct. v. United (quoting Jenkins

380 U.S. curium)) (internal (1965) (per

L.Ed.2d omitted). marks

quotation America,

UNITED STATES

Plaintiff-Appellee, Raymond SHETLER,

Scott

Defendant-Appellant.

No. 10-50478. Appeals,

United States Court

Ninth Circuit. 3, 2011.

Argued Aug. and Submitted Dec.

Filed

Case Details

Case Name: Brian Parker v. Larry Small

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 27, 2011

Citation: 665 F.3d 1143

Docket Number: 10-17128

Court Abbreviation: 9th Cir.