*1 83, 1141, Ariz. Regents, party Bd. 676 P.2d MANDED. Each shall bear its (Ariz.Ct.App.1983). appeal. own costs on argue Plaintiffs the school falsely imprisoned they
district A.G. when
physically her, despite restrained A.G.’s
IEP Addendum providing that she would
not be restrained unless presented she others,
danger to herself or and the dis training directing trict’s manuals staff to TARANGO, Jr., Manuel Petitioner- stop transporting strug student who is Appellant, gling against an escort. The district court that, light ruled in of the numerous in in stances reflected the record where A.G. McDANIEL; Attorney E.K. alleged presented danger have General, Respondents others, herself or there was evidence that Appellees. presented she such a danger February on No. 13-17071.
3, 2010 and March dates when defendants could not have avoided re United States Court of Appeals, straining her. But the district court ne Ninth Circuit. glected to consider the evidence Argued showing record Submitted Dec. presented A.G. no danger such on those occasions. Because Filed March plaintiffs introduced evidence sufficient to genuine create a issue of material fact as
to whether danger A.G. was a to herself or
others when school district staff restrained
her, summary judgment plaintiffs’ on false
imprisonment claim improper.11
IV. Taxation of Costs
Because it is necessary to reverse the
order granting summary judgment on
plaintiffs’ claims, section 504 and Title II denying order costs to the defendants
is vacated. See Atonio v. Wards Cove Co., (9th
Packing 10 F.3d Cir. 1993) (citing v. City County Garrett & Francisco, (9th
San 818 F.2d
Cir.1987)). part;
REVERSED in AFFIRMED in
part; part; VACATED and RE- See,
11. We States, hold that the district e.g., court erred in claims. Tekle v. United granting summary judgment plaintiffs' (9th as Cir.2007). F.3d express 854-55 We sault, battery, imprisonment and false claims no view on what the result should be on plaintiffs raising because gen succeeded in of those claims on remand. uine issue of material fact as to each of these *4 Valladares, Rene Federal Public De- fender; Ryan (argued), Norwood Assistant Defender, NV, Vegas, Federal Public Las Petitioner-Appellant. for Mastro, Attorney Gen- Catherine Cortez eral; Schulze, Victor-Hugo (argued), II General, Attorney Deputy Senior Las Ve- NV, Respondents-Appellees. gas, for FISHER, Before: RAYMOND C. BACKGROUND RAWLINSON, and MARY JOHNNIE B. 5,1999, On December a rock band off- MURGUIA, Judges. H. Circuit duty officers, Vegas police Las Metro Blanket, Mike’s Pigs performing MURGUIA; Judge Opinion by Dissent a local bar called Mr. D’s. The bar was by Judge RAWLINSON. off-duty police filled with A group officers. of masked men entered the bar announc- robbery, and a shoot-out ensued. OPINION patrons shot, were Several one robber was MURGUIA, Judge: Circuit killed, officer, police shot and one Offi- Devitte, cer Dennis was shot times. several Jr. Tarango, appeals Petitioner Manuel surviving escaped The robbers the scene petition denial district court’s of his for and, later, years Tarango six brought corpus. a writ claims of habeas He viola- felony to trial on seven counts. process tion of a fair right his due trial received considerable local media at- impartial jury, police where a vehicle fol- tention, Vegas and numerous Las Metro lowed Juror No. a known holdout police officers attended as both verdict, witnesses against guilty approximately spectators. miles, day seven on the second delibera- tions, in publicized highly involving deliberations, began After its multiple argues victims. foreperson November sent a *5 that the Nevada Court’s decision judge indicating note to the trial that the upholding contrary to, his convictions “was jury had “reached stalemate” because of of, or an application involved unreasonable “problem juror” very who had “made it law,” federal established 28 clear he want part does not to be of [the] 2254(d)(1), § U.S.C. the court because process refusing to discuss or in- [and] failed to whether consider the be- jurors.” “prob- teract with the other The juror tween the police prej- vehicle juror”' separately judge lem wrote udiced jury’s verdict. indicating that he had which “doubt of [he] the limit beyond feel[s] is of reasonable We hold that Nevada doubt,” and that deliberations were “not Court’s contrary decision Mattox v. note, curing doubt.” his [his] States, 140,13 United “problem” juror identified himself as Juror (1892), L.Ed. 917 because the court im- 2.No. properly limited its to whether the external objection,1 contact amounted “communi- Tarango’s judge to a Over ad- investigate prejudi- cation” and jury deliberating. did vised the continue 2nd, cial jury effect of the tail. therefore The next day, We November question review de finding Tarango guilty novo whether the returned a verdict extrinsic contact could all felony charged: have influenced the seven counts as bur- verdict and prejudiced Tarango. glary deadly weapon, Because with the use of a the trial prevented Tarango attempted robbery of a with the use dead- offering ly weapon, conspiracy robbery certain evidence to demonstrate to commit prejudice, evidentiary deadly we remand for an weapon, with use of three hearing and further fact finding. battery deadly counts of with the use of a mistrial, argued being 2’s jurors Juror No. note indi no alternate left to there cated jury hung, place. that the moved take for a Juror No. 2’s Therefore, my vote relinquished I law. murder with attempted
weapon,
ask,
only
within the
violation
under duress.
I
deadly weapon
of a
use
—all
leniency.
law,
[Tarango]
law.
please
show
Nevada
3rd,
Vegas Re-
the Las
11th,
later,
November
Ju-
On
on November
One week
guilty
verdict
reported
view-Journal
attorney,
Tarango’s
ror No.
emailed
in 1999
Man Convicted
in an article titled
copy
of his
Saggese, and attached
Marc
juror
referenced “a
who
The article
Case.
told
Judge.”
to the
“Letter
Discuss-
Review-Journal.”
spoke to the
notify”
“compelled
he felt
Saggese that
in-
process, the
jury’s deliberation
ing the
promptly
Saggese
of the letter.
Saggese
ju-
hold-out
mentioned the
terviewed
charges with
all
filed a motion
dismiss
hung jury
to a
was close
ror: “the case
or,
alternatively,
grant
new
prejudice
unwilling to con-
juror seemed
one
because
misconduct,
ground
trial on the
nearly
days of delibera-
following
two
vict
2’s communication
arguing that Juror No.
tions.”
process had
indicated that the deliberation
4th,
pre-
prompted
On November
with in violation of Taran-
tampered
been
article,
2No.
newspaper
Juror
day’s
vious
go’s right
process.
to due
Under
referencing
the court
a letter to
wrote
law,
catego-
to two
juror misconduct refers
article:
(1)
misconduct,
of conduct:
intrinsic
ries
mentioned in the
I
the one Juror
am
is,
contrary to
by jurors
“conduct
am also the Juror
I
article....
(2)
oaths;”
extrin-
instructions or
their
during deliberations.
you the note
wrote
misconduct,
par-
third
“attempts
sic
beyond the limit
“I have doubt
It read:
Mey-
process.”2
to influence the
ties
I
I consider reasonable doubt.”
of what
State,
80 P.3d
er v.
Nev.
stated,
further
“I did not believe
also
(2003).
Tarango alleged both forms
doubt.”
would cure that
deliberations
(1)
misconduct,
arguing that
Juror No.
fact,
did not
Further deliberations
rather
changed
pressure,
his vote under
my doubt.
cure
evidence of Tar-
than based on admissible
However,
returning to re-deliber-
when
(2)
guilt,
improper
because of
ango’s
2nd from the
Wednesday November
ate
*6
party influence.
third
area,
squad
a Metro
car fol-
Henderson
motion, Saggese
of the
sub-
support
into
on 1-95 and
lowed me northbound
that, after
indicating
mitted a declaration
area.
the downtown
juror
into the
*7
court learned various
Juror
details about
No.
received the information or was contacted are
2's
No. 2
life.
Juror
had served in the Air
permitted.”
Meyer
Meyer,
And he’s There were no at- juror misconduct. He nothing. me a citation for giving ... jury. There’s no tempts to influence the hill, at the and me down followed particular ju- influence on this outside Vegas for Las Boulevard.... stoplight There’s communication or con- ror. no me, there’s still And tight. He followed is alleged ambiguous, The conduct tact. Stewart, something, stop lights, several vague nonspecific content. it’s and then Carson is where this required consider extrinsic Pm to get a is. And we did parking garage whole, as a light the trial influence me. He still behind light there. was red weight of evidence and consider the jurors right to enter the I took that, Tarango Mr. and with against me That’s relieved parking lot. when he decision, [Meyer on the and the ] based or he the escort whatever I’m person required test that reasonable alone. when he left me doing. That’s Mr. I don’t think that Taran- apply. 2 indicated Juror No. questioned, When Therefore, met go has his burden. not tell whether the driver that he could is motion denied.6 female, and he male or vehicle was later, proceeding at a televised Weeks number. squad car report could not February the trial denied on However, the car No. Juror averred on motion reconsider the ba- Tarango’s Metropolitan him “a black behind judg- and entered sis of misconduct a second questioned When white vehicle.” against him. The trial court sen- ment car time, that the No. reiterated Juror year Tarango to a 22-58 term of tenced “consistently” him tight behind remained Tarango promptly appeal- imprisonment. to the for his commute the duration the denial. ed “[cjlose enough [he] courthouse — September the Nevada Su- bumper.” couldn’t see the officer’s the state trial preme Court affirmed the court hearing, At end of Tarango’s motion court’s denial Tarango’s to dismiss orally motion State, denied No. new trial. (Nev. trial. trial court did grant a new The Sept. 123 Nev. 210 P.3d testimony, 2007). not discredit Juror No. 2’s The stated 2No. finding made one factual that Juror test “For the relevant as follows: defen- you closely, however for a tightly, prevail “was followed on a motion new trial dant misconduct, it from on US-95 the defendant must Tropicana want to state based n admissible evidence sufficient to present and Carson.”5 Vegas Las Boulevard rors, roadmap Vegas Metropolitan Las Police De- Having judicial taken notice of Nevada, Vegas, partment, of Las we confirm of this Great and the "Citizens US- Tropicana East Avenue on distance from explained his Nevada.” He verdict State Vegas and East conscience,” 95 to South Las Boulevard he was "untrue because [his] approximately 7.5 miles. Carson Avenue reprisal [his] fear of enter into mind and "let result, expressed As a Juror No. his heart.” 2 wrote a second letter to Juror No. nullify verdict.” [his] desire "to Juror No. judge following hearing. letter be- *8 “may request not that his be taken conceded Honor; gins, accept this letter "Your Please ignorant legal legally,” because he was of privilege to apology. given I was as an "personally procedures, nullifies] but that he 2 and I Juror No. serve as a Juror failed.” forgive that will me.” verdict all those [his] God, Ju- apologize his fellow went on to
1219 (1) misconduct, of at all. It is the occurrence even more dubious establish as to (2) a the misconduct was showing that whether such a ‘communication’was about Id., slip op. (citing at 2 prejudicial.”7 Id., pending a matter the jury.” before 455). Meyer, P.3d words, 7. In slip op. at other having found occurred, that no “communication” had con- The Nevada Court first Supreme Supreme Nevada Court determined that that cluded Juror No. 2’s letters to the alleged influence of the non-eommuni- properly trial court were deemed inadmis- cative contact was “too speculative” to sus- prove that No. had voted sible Juror Tarango’s tain a motion for new trial and in guilty jury violation of the instructions did reach prong not the second of juror, contrary to his oath as a reason- misconduct ing that “for misconduct to be it contact proved —whether objective prejudicial. was be based on facts and not Id. ‘must process the state of mind or deliberative Following state proceedings, habeas ” Id., jury.’ slip op. (quoting Mey- at 6 timely Tarango filed his federal habeas er, 454). P.3d at Absent Juror No. 2’s petition on March 2010. The federal letters, Supreme con- the Nevada Court court district for the District of Nevada “testimony that At- [Defense cluded “tempted was say that the fact Juror 2 Vacarro, torney Saggese, Detective rendered his verdict not upon based Deputy D.A. was DiGiacomo] insufficient evidence, law and but per- because his by objective to show facts that No. [Juror threat, ception dispositive.” is How- committed misconduct.” Id. The Neva- 2] ever, authority, citing without the district Supreme Tarango da Court held that had court “Supreme concluded that Court case by thus failed to show admissible evidence objective law that proof is clear of external Juror that No. had committed miscon- required.” contact It further concluded duct. Id. that in court did not err conclud- The Nevada Court further Supreme occurred, ing that no external had that held there was no evidence of an although court found determina- improper external influence on Juror No. tion “debatable.” The district there- Although Supreme petition fore Tarango’s Sep- dismissed “arguendo [Juror 2] assumed No. 2013, upholding tember as reasonable the car,” followed marked and ob- state court’s determination that Tarango that “any served unauthorized communica- any improper had failed to show external tion between law enforcement contact. may a matter pending about before 16, 2013, On October the district court ‘presumptively prejudicial,”’ be the court granted Tarango Appeala- a Certificate of concluded that No. failed “[Juror 2] bility as Ground One of his amended by objective show facts there was petition, Tarango filed a Notice of external improper communication between Appeal day. the same One Ground reads Id., police.” slip him and the 6-7. op. at as follows: explained The Nevada because being
“it is clear whether convicted one of followed qualifies marked car as a jurors communication believed that the State was Packer, 7. The Nevada Court did not cite Rather, authority (2002). United States L.Ed.2d 263 as did the trial decision, rendering its but this is immaterial court, the Nevada Court relied al- provided the state law is not inconsistent with entirely Meyer. most on its decision in Early established federal law. See *9 1220 (2007)). words, him, 662 In other not be- 168 L.Ed.2d intimidate
trying to Tarango guilty. proper believed a state failure to apply cause he court’s in vio- such, Tarango incarcerated As clearly federal standard under established Trial, an right to a Fair his lation of review ... with law “allows federal-court Due Process under' Jury, and Impartial out deference to state court’s decision” 14th Amendments of the 6th and by the and “unencumbered deference Constitution. United States Panetti, normally AEDPA 551 requires.” only the issue certified 948, 2842; raises 127 also Cas U.S. us. appeal (9th before Small, his 1137, 1146 tellanos v. 766 F.3d Cir.2014) (“If the court applies state DISCUSSION clearly es legal standard contradicts law, novo tablished federal we review de I. claims, correct applicant’s applying novo review de a district We to legal standard determine whether corpus petition. a habeas denial of court’s (citing entitled to relief.” Coo applicant is (9th F.3d 777 Ryan, 752 Hurles v. Cambra, F.3d 1047 perwood v. 245 Cir.2014). where, here, as a state But (9th Cir.2001))). a claim on the mer adjudicated court has Death its, and Effective the Anti-terrorism review, this we look conducting (AEDPA) us compels Penalty Act of by to the a state “last reasoned decision” un to the significant deference to accord addressing the at hand. Miles court issue court decision. See derlying state (9th Cir.2012) Ryan, F.3d v. 2254(d)(1) (2). may § This court U.S.C. — (citing v. 360 F.3d Ignacio, Robinson court’s only when state grant relief Cir.2004)). (9th case, In this look we (1) “re that claim either adjudication of Supreme Septem Nevada Court’s to, contrary that was sulted in a decision affirming ber decision state of, application an unreasonable or involved appeal. court’s judgment direct law, deter clearly federal established the United mined II. States,” was “based on unreasonable Court, after as- light facts in of the of the determination suming that Juror 2 was followed No. pro at the State presented evidence car, police decided that such contact did ceeding.” Id. implicate right pro- to due Tarango’s apply a state court fails to Where cess because it did not amount to a “com- law, apply federal clearly established munication,” much a communication less in reaching its ing an incorrect standard pending jury.” “about matter before the decision, adjudication [is] state court’s “the The court declined to consider whether contrary clearly law.” La established the ver- prejudiced tail have could — -, Cooper, fler dict. We hold the Nevada (2012) 1376, 1390, 182 (holding L.Ed.2d 398 clearly Court violated established contrary adjudication law, by limiting first its Court case federal established law because to whether the contact amounted to it failed Strickland an ineffec apply pend- “communication about matter claim). And in tive-assistance-of-counsel and, second, jury” by failing before circumstance, courts federal habeas non- potential impact to examine the necessary principles “can determine contact on Juror No. Quar communicative 2’s grant (citing relief.” Id. Panetti v. teman, 930, 948, verdict.
1221 A. B. trials, criminal well-en Court has not estab a bright-line lished for authority determining “abso test
trenched
possibly prejudicial
what constitutes a
lutely”
“ex
tending
forbids “external causes
jury.
ternal” influence on a
The Court has
[jury’s]
of
disturb the
exercise
deliberate
devoted more recent attention to clarifying
unbiased
... at least until
judgment
what “falls on the ‘internal’ side of the
appear.”
their
made to
harmlessness is
—
Shauers,
Warger
U.S.-,
line.”
v.
States,
140,
Mattox v. United
146 U.S.
(2014)
135 S.Ct.
422
190 L.Ed.2d
(1892).
149-50, 13
50
We have
S.Ct.
held
(holding
juror’s
that a
dishonesty during
a bright-line
that Mattox established
rule:
voir dire is internal
to the deliberative
any
subject
external contact
awith
process and not
to impeach
admissible
a
a
presumption
preju
contact
verdict);
States,
see also Tanner v. United
verdict,
but
jury’s
govern
diced
107, 118-25,
2739,
483 U.S.
107 S.Ct.
97
may
ment
presumption by
overcome that
(1987)
L.Ed.2d 90
(holding
jurors’
showing that
the contact was harmless.
consumption of
drugs
alcohol during
Colony,
v. Warden
Cal. Men’s
Caliendo
trial is internal to
process
the deliberative
Cir.2004)
(9th
691,
365 F.3d
696
(citing
verdict).
impeach
admissible
a
Armstrong,
States v.
654
United
F.2d
juror’s
It is
that a
phys
established
Cir.1981)).
1328, 1331-33 (9th
or
incapacity,
abuse,
ical mental
substance
Clearly established federal law
dishonesty during
dire all
voir
amount
provides
any
“private
unauthorized
to internal —not external —influences on a
communication, contact, or tampering di
Tanner,
jury’s verdict.
be
during the
ence of a court officer or bailiff
influence can arise
external
permissible
jury’s
“absolutely viti
deliberations would
where,
example,
is shown
ate
regard
the verdict
without
relationship with the office of
have
*11
ac
Smith,
improper
whether
were
the case.
455
trying
prosecutor
influences
jury
over
Mat
tually exerted
the
not.”
addition,
In
an
212,
S.Ct. 940.
at
102
U.S.
tox,
150,
(emphasis
at
D.
a jury
agree
reflects that
ord
could not
as
Parker,
to the
guilt.
defendant’s
Once a defendant shows an external oc
having a
tendency
preju
(citing
currence
toward
as evidence of
dice,
prejudice the fact that
jurors
federal
law
a trial
“the
deliber-
requires
hours,
ated for 26
investigate
indicating
court to
harmlessness or
difference
among them to
prejudice
guilt
actual
of petitioner”).
occurrence. Mat
tox,
50; Smith,
*12
III.
(“This
215,
455
at
102
U.S.
S.Ct. 940
Court
long
remedy
sum,
has
that
for allega
held
the
In
the governing Supreme
partiality
hearing
tions of
is
in Court
can
case law
be distilled as follows:
which the defendant has
opportunity
information,
the
to Where a court receives
Rem-
bias.”).
mer,
prove actual
229-30,
The Mattox Court
347
at
450,
U.S.
74 S.Ct.
categorically
“possibly prej
mandated that
about an unauthorized external contact be
udicial” external contacts “invalidate
the
tween a
and a government agent,
verdict, at least unless their harmlessness whose official position “beyond question
Mattox,
is made
appear.”
to
146 U.S. at
carries great weight
Parker,
with a jury,”
150,
if,
50.
365,
13 S.Ct.
This is
even
required
468,
“know[s]
Remmer,
at
Thus,
state
because the
court as
testimony
No.
ror
2’s
about a plausible
in
that the contact did
fact occur
sumed
external contact with a
reluctant
clearly
case law demon
established
convict,
the Nevada
Court de
tendency
that the contact had a
strates
clined to consider whether Juror No. 2
verdict,
have,
should
affect the
the court
at may have
prejudiced by
been
minimum,
prejudice
investigated
or
clearly
tail.12 This contravened
estab
even if
harmlessness of the contact
at the
Remmer,
lished federal
law.13 See
exactly
time
court was unaware what
450; Mattox,
U.S.
transpired
impact
or whether
50; Smith,
U.S. at
Remmer,
harmful. See
erred
failed to do
IV.
Certainly,
may
there
be circumstances
Because the Nevada
juror’s
allega-
prejudicial
in which a trial court finds
failed to consider
impact
contact,
unsupport-
of an external contact are
in
tions
violation
the law
evidence,
Mattox,
in
sufficient
or which
may
ed
established
we
evaluate
allegations are
implausible
Tarango’s
so
incredible
claim “without deference to the
they may
reasonably disregarded.
be
court’s
decision”
“unencumbered
may
There
also be
which an al-
AEDPA normally
cases
deference
re-
Panetti,
leged
suggests paranoia
quires.”14
external contact
external determine whether left with a favorable should officer them court officer). influencing of risk opinion contact “raises Caliendo, F.3d at 697. Un verdict.” law, our precedent Unlike Nevada circumstances, pre prejudice is der such ju limit instructs that a court should not bears government sumed testimony ror to “the existence of ex [an rebutting presumption burden of at Rutherford, 371 F.3d ternal contact].” sure, “certain Id. To be prejudice. (quoting the court in that district witnesses chance contacts between case). Rather, a court “should con [also] hall in the jury passing members—while sider the ‘effect of extraneous information elevator—may together in an or crowded juror’s contacts on a state improper or (internal quota Id. be inevitable.” mind,’ anxiety a juror’s ‘general fear and omitted). There tion and citation marks incident, following’ an other such fore, “prosaic” if contact involves thoughts juror might have about pernicious extra “more common and less (quoting contacts or conduct at issue.” Id. jury tampering, neous influence” than Elias, v. United States F.3d whether the court determine should (9th Cir.2001)). end, To consis cont “substantially swayed” by the rule, anti-impeachment tent with the this F.3d Henley, act.15 States United permits the limited introduction of (9th Cir.2001). this 1115-16 Under juror’s of mind to evidence of circumstance, defendant bears not, may misconduct. A court prove offering sufficient evidence burden rule, the anti-impeachment consistent with prejudice. See trigger presumption testimony “regarding admit the affected Caliendo, (collecting at 696-97 365 F.3d juror’s processes in reaching mental authorities). (internal quotation verdict.” Id. marks rule, co anti-impeachment Although omitted) 1020).. Elias, (quoting F.3d Rule dified Federal of Evidence However, juror’s testimony concerning “a 606(b)(1), testimony re prohibits fear his individuals would retaliate processes con “any juror’s mental garding (or against acquit him if he con voted verdict,” exception cerning the vict) admissible, although his would be juror testimony permits rule about wheth actually statement that he cast his vote was improperly er “an outside influence way one or the other because of that fear any juror.” Fed. brought bear on *15 not.” Id. would 606(b)(2)(B). This has ac R.Evid. principles Consistent with the an juror admissible limited cordingly deemed Rutherford, nounced district court impact “the testimony [of to determine should admit Juror No. 2’s statements juror, upon influence] outside him, impacted police about how the tail not was [the influence] whether or outside although how it his impacted not delibera Remmer, prejudicial.” Therefore, tions and verdict. Juror No. 450; Rutherford, F.3d at see also found the tail police 2’s statement he juror 643-45 affidavits includ (considering admissible, are “unnerving” is as his state that the felt intimidated claims Caliendo, police glares); F.3d ments that he “concluded Metro somehow officers’ Meyer, juries. Supreme 15. Court identified influences on criminal 80 P.3d The Nevada has dichotomy own similar in its construction at 455-56. Supreme prohibiting external case law contrast, might Juror such conduct constitute external By was.” [he] knew who “relinquished jury that he further requiring No. 2’s statements duress,” “still However, [has] under Supreme his vote the court. the Nevada an X-Juror” are not admissible. doubt as juror’s that the assump- Court determined officer him police targeted tion as
V.
speculative
the holdout
and un-
scope
evidentiary
Because the
recognized by
substantiated.1 As
the ma-
in the
hearing
narrowly
circumscribed
jority,
Supreme
the Nevada
Court ex-
court,
the record before us
state
pressly found that “there was no evidence
po-
determine whether the
insufficient to
improper
of an
external influence on Juror
preju-
the verdict and
lice tail influenced
Majority Opinion, p.
No. 2....”
Tarango.
accordingly
We
remand
diced
by that
We are bound
factual determina-
evidentiary
to hold an
for the district court
showing
tion absent a
of unreasonableness.
proper
standard to
hearing
apply
2254(d)(2).
§
See U.S.C.
Nevada courts vio-
determine whether the
Appellant
Tarango
Manuel
moved for a
a fair
Tarango’s
process right
due
lated
trial in the
court on
new
the basis of
impartial jury by failing
adequately
jury process.”
an “outside influence on the
exter-
allegations
prejudicial
consider
of a
Order,
p.
Nevada
1. Ac-
jury. Following this
nal influence on the
Court,
cording
to the Nevada
court should
precedent,
court’s
the district
juror conveyed
thought
holdout
that “he
he
to offer limited evidence to
permit Tarango
Id.,
by police
p.
had been
car.”
followed
Caliendo,
prejudice,
show
see
365 F.3d
added).
in-
(emphasis
Because he felt
696-97;
in-
Henley,
F.3d at
timidated,
juror changed
his vote to
cluding
“general
of Juror No. 2’s
evidence
guilty
guilty.
from not
tail,
anxiety” following
fear and
at 644.
Rutherford,
371 F.3d
The Nevada
Court also noted
newspaper
that a recent
article attributed
AND REMANDED.
VACATED
juror’s change
of heart to the fact that
RAWLINSON,
Judge,
Circuit
jurors
“the other
were able to
convince
”
dissenting:
Id., p.
holdout to convict....
4. After
juror’s
discussing the
email to the trial
majority
I
a mem-
agree with
if
letter,
juror’s follow-up
judge and
Vegas Metropolitan
Las
Police
ber of the
concluded that the
purposefully tail-gated a hold-
Department
properly
trial court
excluded from consid-
freeway
on the
for over seven
out
holdout,
miles,
juror’s
judge
eration the
emails to the trial
because the
was a
tail-gating police
majority
my descrip-
state courts’ view that
1. The
mischaracterizes
morning
officer in rush-hour
traffic constitut
the state courts’ factual
tion of
determination.
improper
Rather
ed an
external influence.
Majority Opinion, p. 1223 n. 9. The state
See
focusing whether
submitted
than
discredit, and I did
describe
court did not
see,
influence,
e.g.,
an external-
evidence of
finding
discrediting,
the state courts'
Juror
States,
140, 141-44,
Mattox v. United
“thought
that he
he was
No. 2's statement
*16
(inflammatory newspaper article
(a) testify concern- juror A shall of a to the asserted extraneous influence ju- anything upon ing the effect police following juror car on the free- juror’s mind or emo- any other ror’s or way.2 Admittedly, the court couched its influencing the to assent as tions being in fol- analysis terms of whether the verdict or indict- to or dissent by a car a “com- police lowed constituted concerning juror’s mental ment or Id., Nevertheless, p. munication.” 7. therewith. in connection processes ultimately concluded that “the al- court (b) affidavit or evidence of The in leged external influence the case bar by juror indicating an effect statement speculative was far too to sustain a motion any pur- for kind is inadmissible of this for a new trial.” Id. It is this conclusion pose. that is reviewed under the Antiterrorism Penalty Effective Death Act of 1996 Supreme Court Meyer, the Nevada (AEDPA). Initially, 50.065. interpreted N.R.S. Federal Rule of Evidence court referenced years, In the last ten the United States an embodi- 606(b), it identified as which Supreme repeatedly has rebuked Court common-law long-standing
ment of “the
attempting
for
to make end-
this Circuit
jury testimony to
admission of
against
rule
runs around the formidable obstacles to
...”
n.
granted pursuant to ”). a standard....
such
CONCLUSION *21 quarrel
I have no with the notion faithfully panoply adhere to the we must HEDLUND, Michael Charles the crimi- procedural protections afforded Petitioner-Appellant, However, on habeas re- nal defendant. view, by are cabined the deference we v. to state court decisions and owed RYAN, Respondent- L. Charles only if
requirement granted relief be Appellee. the decision of the state court was con- trary to established Court au- 09-99019. No. authority not that
thority. Mattox is Appeals, United States Court this case. Ninth Circuit. repeatedly re- Court has minded us that the standard for relief on 6, Argued and Submitted Dec. habeas review “is difficult to meet Filed March ” Richter, because it was meant to be.... 770. Federal guard against
habeas review “is a extreme justice in the state criminal
malfunctions systems, ordinary er- substitute ” through appeal....
ror correction Id.
(citation
quotation marks
and internal
with,
specific holdings.
majority
beyond
See White
7. The
takes issue
and in the
dent
its
concedes,
-
process implicitly
my point
Woodall,
-,
upon by
ma-
Court cases relied
(2014) (“[I]f
a habeas
L.Ed.2d
jority
insufficiently specific.” Majority
"are
can
court must extend
rationale before it
Opinion, p.
very
1225 n. 12.
next sen-
hand,
apply
to the facts at
then
definition
tence,
majority
seeks to "extend” the stan-
”)
rationale was not
established ...
progeny.”
dards set forth in "Mattox and its
(citation
quotation
and internal
marks omit-
However,
express-
Id.
Court has
ted).
ly
against extending
prece-
instructed us
its
the trial court read the
notes
unnerving.
I found that action
ongo-
were
record and while deliberations
much time and
I
the State has
realize
Saggese
Deputy
overheard
District
ing,
money
this case. There
invested
Attorney
report to Detec-
Marc DiGiacomo
I
no alternate Juror.
con-
were [sic]
phone
over the
tive James Vacarro
I
Metro somehow knew who was
cluded
juror,
holding
No. was
out.
one
Juror
my unwillingness
of
to convict.
and knew
indirectly
Saggese
thus
corroborated Juror
I
been in trouble with
have never
making
testify,
a decision on the
Meyer
failure to
2.
further clarifies the distinction:
during
prejudice,
lying
basis of bias or
and
category
jurors failing to
The first
includes
It also includes
incom-
to discuss
voir dire.
follow standard admonitions not
deliberations, accessing
prior
petence
the case
intoxication. The
issues such as
case,
reports
conducting
about the
media
category
attempts
involves
to influ-
second
investigation,
independent
dis-
research or
jury’s
through improper
ence the
decision
nonjurors, basing
cussing the case with
threats,
jurors,
bribery.
with
or
admitted,
not
their decision on evidence
omitted).
(internal
citations
80 P.3d
discussing sentencing
defendant's
or the
being
[Right
No. 2’s
belief that he was
getting
freeway,]
stated
after
on the
I
targeted
juror by introducing
as a hold-out
was in the center lane
I
[of US-95].
me;
Las Vegas
squad
evidence that members of the
noticed a Metro
car behind
police department
fairly
both
that Juror
knew
close behind me....
He
close
acquittal
No. 2
knowledge
enough
favored
and had
I
couldn’t
his front wheels or
identity.3
bumper.
of Juror No. 2’s
IAnd looked down and I was
speed
not
exceeding
limit.
hearing
The trial court held a full
on
Tarango’s
following
motion the
month.
I signaled
got
right
and
over to
far
Attorney
Juror
Saggese,
No.
Defense
lane anticipating being pulled over and
Vacarro,
Detective
D.A. Di-
Deputy
he stayed tight behind me.
testify regard-
Giacomo
all called to
were
knowledge
alleged
their
events
question.
communications in
At the
I
speed
maintained under the
limit an-
court
hearing, the
limited
questioning
ticipating being pulled
A couple
over.
2 pursuant
provision
of Juror No.
to a
of
minutes
he never
up,
lit
he never
Evidence,
Code
Nev.Rev.
he
going
pull
indicated that
was ...
50.065,
§
Stat.
which prohibits the admis-
just
me
I
right
over. So
maintained
testimony,
sion for any purpose of
affida-
position
lane
under
the speed limit.
vits, or
of any
evidence
statement
This
on.
continued
indicating an
jury’s
effect on the
process.
deliberative
The court also relied
[At Eastern
there
a lot
Avenue]
the Nevada
case of
traffic entering
freeway....
[T]here
State,
Meyer v.
which provides
many
merge
was so
cars trying to
into
“[ujpon
into
validity
of a
the freeway
Metropolitan squad
that the
...,
verdict
may
testify
as to
car actually pulled up
prevent
closer to
any
occurring
matter or statement
during
anyone
our
pulling
between
ve-
deliberations,
jury’s
the course of the
or to
hicles.
the effect
anything upon
or
juror’s
other
mind.”4