*1 that we should read suggests FSIA into the stat- requirement an exhaustion defeat Con- will tend to Doing so
ute. consistency and achieving goal of
gress’s foreign sover- against
uniformity in suits by the addressed The concerns
eigns. entirely distinguishable,
Sarei plurality event, plurality’s decision
and in into the requirement exhaustion
write an There no binding on us. is not
ATS con- law this judge-made create
need to therefore, from I would refrain
text, and dissent. respectfully
doing so. SMITH, Jr.,
Anthony Bernard
Petitioner-Appellee,
v. Lockyer, CURRY;
B. Bill
Respondents-
Appellants. Smith, Jr.,
Anthony Bernard
Petitioner-Appellant, Lockyer, Respondents- Curry;
B. Bill
Appellees. 07-16875, 07-16876.
Nos. Appeals, Court of
United States
Ninth Circuit. 10, 2008. Dec.
Argued and Submitted Sept.
Filed 2009. *2 Porter, FD, Sacramento, CA,
David M. for petitioner/appellee/appellant, Anthony Smith, Bernard Jr. DOJ, Eldridge, Sacramento,
David A. CA, for respondents/appellants/appellees, Curry B. Bill Lockyer. twenty-five term of years followed years life. *3 DNA evidence
Evidence trial included attempted Smith. Smith implicating expert through an discredit evidence SCHROEDER, M. MARY key Before: included the Other evidence witness. and N. RANDY BERZON MARSHA S. post-arrest statements Smith and Hinex SMITH, Judges. Circuit gave investigating to the officer voluntarily rights. waiving their Miranda after SCHROEDER; by Judge
Opinion
and Partial Dissent
Partial Concurrence
deliberations,
day
the third
of
On
Judge N.R.
SMITH.
it could
jury first informed the
copulation
reach a
on
oral
SCHROEDER,
verdict
Judge:
Circuit
jury
charge. When
returned dead-
precedent spanning
Supreme Court
time,
a
gave
the court
locked a second
century
a trial
permits
more than
charge.”
an “Allen
change modeled after
about its
instruct
deadlocked
jurors wrote a
deliberate,
day,
from
the fifth
one of the
but bars the
On
duty to
coerce a verdict. See
to force or
trying
judge, explaining
thought
he
note
492,
States,
17
164 U.S.
v. United
Allen
tainted. The court
the DNA evidence was
(1896);
154,
The next Sunday, September Meanwhile, room, living Hinex watching Mr. S was television in the knife, menaced Mr. with steak S his took couple’s living room. Mrs. was in the S organizer, checkbook and electronic and washing bedroom after hair. her When then grabbed dragged and him down the rang, opened doorbell Mr. S the front bedroom, hall to the where Smith was Smith, door and saw petitioner tall Afri- pulling up pants hearing po- his after t-shirt, can-American man in a black lice sirens. Smith and Hinex then ran out standing with a newspaper. folded Smith the officer, front door as police the first told Mr. S he was soliciting subscriptions, Johnson, Officer arrived. Johnson un- was but Mr. S said he was interested and Hinex, able to catch Smith and but other couch, returned to leaving his the screen yard officers found Hinex in a a few hous- door unlocked. Smith Mr. followed S into es down the street. Hinex was immediate- head, the house gun and held a to his ly arrested and identified the Ss as the asking money where the was. When Mr. perpetrator in copulation the oral incident. any money, S denied having hit him Smith Hinex, Detective Willover interviewed with his hand and with the gun, or- and who named a participant Smith as in the dered Mr. S to money. hand over the robbery and as the one who had forced later, Seconds another African-Ameri- oral copulation by Mrs. S. In interviews male, Hinex, can codefendant entered the day, the next tentatively Mrs. S identified house money. and also demanded After Smith from a photo lineup told and Detec- shoot, Smith threatened to Mr. S handed ejaculate tive spit Willover about the she Hinex, over his wallet who took out $8 on carpet. When Detective Willover pocketed the bills. interviewed September Smith on Smith then Mr. if asked S his wife day arrest, of his Smith admitted taking responded home. Mr. S might she be part in the burglary, but denied sexual door, the shower or next and Smith assault. went to look for her the bedroom. blood, Testing of saliva and semen sam- When Mrs. S heard him coming, she called ples of the defendants and the victim ex- 911 and hid beside the bed. Smith en- cluded Hinex and Mr. S as the donor tered the bedroom and went through the the semen on Mrs. S’s t-shirt and closet on S, and drawers. When he saw Mrs. carpet, but did not he ordered exclude Smith. DNA get up. her to up As she stood testing from hiding place, samples her Smith the semen and saliva slapped and her kicked and asked if from carpet she had the T-shirt and called led the crimi- police. Mrs. responded S nologist that she hadn’t conducting the testing conclude lice, he had in which said he and Smith involved in the of the three males Smith, Hinex, case, house, namely Mr. S and and Smith went entered only from Smith. could have come copulation by semen forced oral bedroom and on statistical criminologist relied Mrs. S. every that one out of calculate methods testify did not at trial. Smith African-Americans, every out of 1,450 one officers, admit- police statement Smith Caucasians, every and one out 19.500 burglary in the taking part ted rob- have same combi- Latinos would 17.500 beries, sexually assaulting Mrs. but denied genetic found Smith’s nation of traits en- He that after he and Hinex S. stated sample. sperm DNA in the house, they to Mrs. S’s tered the went testimony trial from presented together, bedroom Hinex later Mueller, testing, DNA Dr. expert an trial, S another room. At took Mrs. question validity into who called for Hi- prosecution played both techniques to link Smith to testing used taped nex’s and interviews with Smith’s samples. Dr. Mueller criticized the semen *5 Detective Willover. and criminologist’s statistical methods the labs produce that crime can false stated jury began Septem- The on deliberations Dr. Mueller con- DNA tests. positives 17,1998. day On the third of delibera- ber however, ceded, the National Acade- that tion, guilty it returned ver- September testing the approved had my Sciences counts, burglary dicts first three used the crimi- calculating and methods robbery, but was not and two counts of nologist. a verdict on oral able to reach Count The court if trial, copulation. asked there was a amount of ad-
Before
substantial
might
further
regarding
hope
the DNA test-
that
deliberation
ditional evidence
verdict, and,
receiving
to the court
presented
methods
in a
after
result
hearing
Kelly-Frye
on Smith’s
during
jury
sent the
to
positive response,
back
criminologist’s
test-
suppress
motion
deliberate.
People Kelly,
17 Cal.3d
ing results. See
day,
jury
At
had
the end
still
(Cal.
Cal.Rptr.
549 P.2d
foreperson
a verdict. The
not reached
1976);
States,
Frye v. United
through lapse the evidence because of time nated asking money and where the was. point Further, handling procedure. I can and Hinex and McCurin then stated not absolute conclusion that come to the at the out of the house sound of rushed procedures utilized at processes and impeached at trial with Hinex was sirens. proven the DNA match have story initially arriving told at po- the inconsistent he only be as if you infallible indication of views are their convinced guilt charge. Mr. on this Smithfs] wrong. Fair and effective delibera- tions require- forthright frank and ex- For me the choices are: change of views. 1. Mrs. ]’s Was unreliable identifica- S[ previously you, ... tion of her attacker As instructed credible? each you yourself, must decide the case for Smith, according 2. Did Mr. you statement, only do should so after a full admit to the three other charges only deny complete all fourth? consideration of your jurors. evidence with fellow It is 3. Are the County Sacramento Crime your duty jurors Lab’s based on the DNA to deliberate findings only match the on goal arriving credible evidence verdict on the charge? this charge if you can do so without violence Unfortunately, me, your for that is one judgment. individual charge. absolute conclusion room, returned Therefore, I have a reasonable doubt later sent a note that it was still unable to in good conscience cannot vote for agreement. reach It was at that point conviction. that the judge decided to comment on the gave The court then an Allen-tj^e giving evidence to the jury, the instruction instruction, objec- over defense counsel’s of this appeal. The centerpiece ground tion on the the instruction instruction focused on the “consistencies *6 light would have coercive in effect and in inconsistencies” Hinex’s and Smith’s knowledge juror’s court’s of a thought pro- statements to Detective Willover. Those cess. The following portion is the relevant statements were inconsistent as to wheth- of that trial court instruction: house, er Hinex went in the but were you your To assist in further delibera- go consistent that Smith did in. de- tions and to address concerns ex- objected fense to the instruction. Defense pressed communication, in [Juror I 10’s] expressed counsel respect judge, for the am to willing you further instruct in this persuaded but stated she was that on this as case follows. occasion, judge was improperly com- goal jurors Your as should be to reach menting evidence, on particular due to his impartial fair and solely verdict based on belief that guilty Smith was on the copula- presented evidence and re- without charge. tion objected Counsel specifically gard for the consequences your ver- to commenting the evidence regardless dict long of how it takes to do supporting juror’s conviction in light of the your so. duty jurors What as to is expressed doubts about the DNA evidence. consider, carefully weigh and evaluate pointed Counsel out that had all presented trial, of the evidence at the heard a of background lot on the DNA to your regarding discuss views that evi- in pretrial Kelly-Frye hear- dence to and listen to and consider the from which the was excluded: your jurors. views of fellow say I’d like I make these com- your In the course of further delibera- great ments with discomfort tions, because you not should hesitate to reexam- my respect tremendous for this your Court. ine own or to request your views I’ve had numerous jurors dealings fellow with this to reexamine their views. my Court You should not as home court change your hesitate for you view once couple years held if I convinced it is and ... have been wrong jurors or to suggest change other impressed with the competence, Court’s Hinex careful, thony Smith and James made cautious honesty and intellectual following enforcement their arrests. legal law issues. consideration of Court, my out that I point Accordingly, completed I after have .... want in believe, sincerely comments, held belief to have going has I am those I very clear guilt. It is in played open the defendant’s court. As statements that the statements, And submit that that’s true. you you to their listen discretion letting that affect its is transcript you Court which should read the matter, point I need to out in with that corre- provided have been has heard a tremendous that the you’re listening sponds the statement respect to of evidence with statements, amount listening to their to. When DNA, specifically, serology their you compare should statements jury has heard. against You should each other. listen in request I would the Court for there state- [sic] .... So consistencies whether its belief in defen- inconsistencies. consider ments as well as Con- part in on evidence guilt is based sistencies in statements inconsisten- dant’s presented proper not been not—that has cies statements are areas evaluating this ease. prosecutor consider in evidence. so obviously it is so .... reason Among inconsis- [T]he the consistencies and jury consid- devastating is because the you will hear in James Hinex’ tencies intelligent lawyer Willover, the most ers the Hinex statements to Detective courtroom, certainly it is clear up he and Smith went tells Willover that they do. this case home. Hi- S[ ] to the front door of the pretended said Smith to sell the nex for motion denying defense counsel’s After in- newspaper. Hinex said Smith went mistrial, the court instructed in- going the house. Hinex denied side follows: side house. reviewing gentlemen, Ladies *7 Hinex’ statements to Detective In Will- you have sent ten communications Ware, Detective Hinex said over and your you began delibera- Court since guy the went into that Smith was who 18th, 1998, ap- it September tions on Christopher Hinex said the house. as question the pears to Court that the the was not at house when [McCurin] actually perpetrated forcible oral to who go- Hinex denied the incident occurred. of is a matter copulation upon [Mrs. S] ing into the house. controversy among you. back of said Smith went the course, Hinex are, judges of the exclusive
You gun and closed the house with a facts, your duty, you if of only Hinex said Smith was door. can, way a or arrive at verdict one of the house. In one who ran out end, going I am To that another. Willover, Smith’s to Detective statement that I have priviledge [sic] exercise he and Hinex went he told Willover to comment under the laws a told gun. door with Smith evidence, the front my will impose not to on the he and Hinex went to house way, have Willover you simply on but [McKinsey]’s stayed Rob and Chris you may not you review certain evidence did told Willover Chris house. Smith during or discussed have considered go in the house. not your deliberations. he Hinex went inside view, you Smith said important it is my Ms. that he found An- house. said Smith
consider statements defendant instruction, jurors, one of the last one S[ back bedrooms. Smith of the other ] gun said he had the when he was back saying Juror handed the a note bailiff S[ ]. there Mrs. Smith said that she was frustrated with the deliberations bill. gave S[ ] Mrs. him $100 and wished be excused for the rest of are other consistencies and incon- day. There court had bailiff tell the you hear in sistencies their state- will she should come back to deliberate ments, significant but these are the most after lunch. informed counsel of my view. the incident while the was deliberat- ing. objection Defense counsel made no played tapes The court then of Hinex’s the court’s communication 9. Smith’s statements to detectives. Af- with Juror (cid:127) tapes played, ter the were the court fur- lunch, after Soon returned a ther instructed: guilty verdict against Smith on Count making comparison After of the state- copulation oral count. Smith an filed ment of Smith Anthony and James Hi- trial, unsuccessful motion for a new enforcement, nex to law consider and judge’s basis both the comments on the comparison discuss your how affects jury, evidence to which had there finding perpetrated as to who the act of objection, been a strenuous and the han- copulation upon forcible oral [Mrs. S]. letter, dling of Juror 9’s to which there had My advisory only comments are and are ,, objection. no been . binding you you are the exclu- appeal, In his challenged direct judges questions sive of fact sub- evidence, the comments on the urging you mitted to of the credibility judge’s in the context of the knowledge of the witnesses. evidence, Juror 10’s doubt about the DNA you again also remind that both the highlighting comments other People and the defendant are entitled to supporting conviction were coer- opinion juror. individual of each It cive and violated federal law. The Califor- duty you is the each to consider the nia of Appeal rejected claim on evidence for the purpose arriving at a merits, describing the comments as you verdict if can do you so. Each of “scrupulously fair” encourag- and neither yourself must decide the case for against verdict for or the defendant. only should do so after a discussion of The court cited the state’s constitutional the evidence and instructions with the provision authorizing to comment jurors. other *8 Const, evidence, VI, see Cal. art. You change should not hesitate to an 10, § applying and cases it. opinion you if are convinced it is errone- The appeal direct also involved a claim ous; however, you should influ- be that the court should have advised counsel any question partic- enced to decide in a immediately about Juror 9’s be wish to way ular majority because the of the excused. The appellate state court ruled jurors any or of them favor such a deci- Smith had the by failing waived claim sion. object. you And when discussing are and delib-
erating, remember, too, you not par- petition filed this habeas feder- matter, tisans or in this advocates but al pro appointing district court se. After you are judges. counsel, granted the peti- district court the judge’s tion on the claim that The com- point deliberations that were apparently sufficiently that, unpleasant regarding ments as defendants’ state- receiving left for lunch after clearly the ments were coercive and violated
1079 law, I. The Instruction Deadlocked pe- denied the but established Jury claims of constitutional tition on Smith’s parte the court’s ex arising from
error trial case instructed The appealed 9. The state with Juror contact jury, after had returned deadlocked juris- haveWe cross-appealed. and Smith time, for the third that it should consider 2253(a). § 28 U.S.C. pursuant diction inconsistencies” certain “consistencies and from the DNA evi- apart
in the evidence
juror,
10,
that
holdout
Juror
had
dence
ANALYSIS
that the
The evidence
district
questioned.
replayed
for
court selected and
reviewing
In
the district court’s
statements of
post-arrest
consisted of
petition
of a habeas
under
grant or denial
codefendants,
petitioner
Hinex and
analysis
§
conduct our
28
we
U.S.C.
statements were all consistent
Smith. The
Duncan,
See,
v.
e.g., Yee
de novo.
stating
Smith went into the house
Cir.2006).
(9th
The function
F.3d
committed,
where
crimes were
the standards
federal courts under
Hinex
were inconsistent
to whether
Effective Death
Antiterrorism and
of the
went in and whether Hinex was ever alone
(“AEDPA”)
is
review
Penalty Act
with Mrs. S.
delivered
of the
decision”
“last
reasoned
comments over defense counsel’s vehement
Nunnemaker,
501 U.S.
courts. Ylst
objection
they
pro-
were calculated to
115 L.Ed.2d
guilty
light
verdict
of Juror 10’s
duce
(1991).
enti
petitioner
A federal habeas
is
evidence,
about DNA
because
concerns
circum
relief in limited
tled to habeas
had
much scientific evi-
heard so
if
his conviction involved
stances. Even
did not hear that validated
dence
Constitution,
violation of the United States
the DNA
in the case. Defense
results
only if the deci
habeas relief is warranted
that the
com-
counsel also insisted
to,
contrary
or
“was
sion of
state court
not be
ments on the evidence would
“scru-
of,
an unreasonable
involved
pulously fair” because
isolated
law, as deter
clearly established Federal
contradictory in-court
Smith’s and Hinex’s
of the United
mined
testimony.
States,” or if the state court decision “was
on an unreasonable determination
based
expressly
California’s constitution
light
presented
the facts in
provides
judge may
that a
comment on
proceeding.”
in the State court
U.S.C.
may
any
make
com
evidence. “The court
2254(d)(1)
(2).
§
&
testimony
and the
ment
the evidence
as in its
credibility
witness
Supreme Court has held
opinion
necessary
proper
for the
deter
Const,
law” under
“clearly established Federal
Cal.
art.
mination
cause.”
legal prin
governing
AEDPA means “the
VI,
judge’s in
approving
§ 10.
*9
principles
by
set forth
the Su
ciple or
commentary, the state
struction and
Court
at the time the state court
in
preme Court
Appeal
of
cited two California cases
v. An
Lockyer
decision.”
renders
its
which the
had commented
1166,
71-72,
drade,
63,
v.
jury. People
538
123 S.Ct.
a
U.S.
evidence to
deadlocked
(2003).
case,
499,
340,
Proctor,
Cal.Rptr.2d
144
In this
4
15
155 L.Ed.2d
Cal.4th
(1992);
People Rodriguez,
decision is
P.2d 1100
last reasoned state court
842
730,
667,
Cal.Rptr.
P.2d
Court of 42
230
726
decision
the California
Cal.3d
2000
(1986).
trial court
Neither involved a
Appeal.
known
addressing
concerns of a holdout
evidence. The state court’s
up-
decision
juror.
holding the instruction as a fair instruction
was an
application
unreasonable
of estab-
upholding
commentary
and in-
Supreme
lished
Court law.
case,
in this
struction
the California Court
of Appeal correctly recognized that Cali-
grandparent
The
of all
dealing
the cases
fornia law is more lenient
than federal
Allen,
with
a
instructing
jury
deadlocked
is
guidelines imposed by the United States
492,
154,
164 U.S.
17 S.Ct.
41 L.Ed.
Supreme
in the
Court
exercise
the first case to
approve
consider and
powers
Court’s supervisory
over the feder-
supplemental
of a
charge
use
to a dead-
instructing
al district courts
a deadlocked
jury.
locked
The Allen instruction
jury. The
acknowledged
also
charged
jurors
in
minority
con-
respect
that California courts must
sider the views of the majority and to ask
protections,
by
constitutional
as delineated
themselves whether their own views were
Supreme
the U.S.
Court. The issue in
reasonable.
The
Court has not often
juror,
each
individual
no means
had occasion to deal with the constitutional
that opinions may
follows
not be
dividing
jury
line between
a
instructing
changed by
conference
room.
it.
coercing
This is no doubt because
very object
system
is to
the exercise of its supervisory
unanimity
secure
aby
comparison of
powers
developed
has
prophylactic rules to
views,
by arguments
ju-
and-
among the
govern
See,
Quer
the federal courts.
e.g.,
rors themselves.
It certainly
be
cannot
States,
cia v. United
289 U.S.
juror
the law that each
should not listen
(1933).
77.
L.Ed.
We therefore
with
to the arguments,
deference
only
deal
directly
handful
of cases
with a distrust of
judgment,
his own
if
applying constitutional
limits on the au
large
he
majority
finds
of the
thority
a trial
to encourage
taking a different view of the case from
productive
toward
resulting
deliberations
what he does himself. It cannot be that
cases,
an unanimous verdict. Those
go
each
should
to the
room
however,
clarity
define with
some of the
awith
blind determination that the ver-
critical federal constitutional boundaries.
shall represent
opinion
dict
analysis
An
Court’s deci
moment,
case at that
or that he should
sions,
dating
requires
back to
us to
arguments
close his ears to the
of men
conclude that the California Court of Ap
who
equally
honest and intelligent as
peal’s approval of the
instruction
himself.
case, directing
jurors
to the evidence
Id.
501-02.
conviction,
supported
believed
charge
approved in Allen is similar
boundary
crossed the
from appropriate en
supplemental
charges
first two
couragement
duty
exercise the
to delib
judge gave
jurors
the trial
erate
order to
in this
reach
unanimous ver
case.
dict, and went
Those
territory
into the forbidden
instructions are not challenged.
*10
of coercing particular
supplemental
however,
a
on the
charge,
verdict
ba The third
sis of the
selective
of the
beyond
view
went far
Allen.
by
The trial court
jury
determination that the instruction in that
dividing
the
knew what
that time
Allen,
evi-
than in
be-
specific
commented on
case was less coercive
and therefore
a
urged
of
the
in Allen
the minori-
the known concerns
cause
dence to address
ty
majority
of the
juror.
to consider the views
holdout
question
the
and to
the reasonableness of
jump forward
guidance we
For further
237-38,
at
minority’s own views. Id.
years
Supreme
to the
a hundred
nearly
Quoting
language
546.
famous
S.Ct.
the
Lowenfield,
in
484 U.S.
Court’s decision
object
jury
from Allen
the
of the
231,
546,
568. Low-
98 L.Ed.2d
S.Ct.
system
unanimity
is to “secure
a com-
a
arising out of
was a habeas case
enfield
views,”
in
of
the
Court
parison
re-
After
court conviction.
Louisiana state
“continuing
said that the
validi-
Lowenfield
jury that
it was
ceiving notes from the
ty
this
in Allen are
Court’s observations
decision, the
difficulty reaching a
having
beyond dispute,
they apply
with even
as to
polled
jury
the
whether further
judge
this,
force in cases
where
greater
such as
helpful.
judge
be
would
deliberations
charge
in
so-
given,
contrast
the
juror,
you
“Do
feel that
each
asked
charge,’
‘traditional Allen
does not
called
you to
enable
further deliberations will
specifically
minority jurors.”
speak
at
at verdict?” Id.
108 S.Ct.
arrive
us,
course,
Id. In the case before
jurors
in
affir-
Eleven
answered
546.
supplemental
court’s
third
instruction
at
negative.
Id.
and one
mative
spoke directly
minority juror.
to the
234-35,
then
546. The court
108 S.Ct.
if it
jury, telling
it that
reinstructed
respect
polling
to the
of the
With
unanimously
agree
was unable
that informed the
court Lowenfield
impose
“the
shall
recommendation
jury’s
numerical division on
Imprisonment
of Life
without
sentence
deliberation,
utility of future
the Supreme
Probation,
Suspension
Parole or
benefit
Court stressed that the trial court did not
546.
Id.
Sentence.”
jurors
how
on the
know
stood
merits.
object
poll-
Defense counsel did
jury,
In
the trial
in Low-
polling
instruction, and
supplemental
or the
asking
jurors
was not
“how
enfield
thirty
minutes with a
returned
verdict,
they stood on the merits of the
sentencing the defendant
death.
verdict
how
of whether
question
stood
Id.
might
them in
further deliberations
assist
returning a verdict.” Id. at
S.Ct.
re
In
the conviction and
upholding
case,
court did know
petitioner’s claim im
546.
jecting the habeas
coercion,
exactly
jurors
the Court reiterated the
how the
stood on the merits.
proper
it
previously
same
had
used
standard
went so far as
ob
Lowenfield
superviso
involving
in cases
its exercise of
that it is
for the
impermissible
serve
courts,
ry
lower federal
which
powers of
it must reach a verdict.
instruct
reviewing
must
courts
consider
239, 108
In this
484 U.S. at
S.Ct. 546.
“in
supplemental charge
trial court’s
its
case, the
be
have
trial court can
said to
all
context
under
the circumstances.”
gone beyond simply instructing
(quoting
Id. at
The Court
Accordingly, we affirm the dis-
the time.
applica-
or an unreasonable
contrary
corpus
relief
grant
trict court’s
habeas
law. The Su-
tion of established
affirm the
on this claim. We also
district
held that coun-
expressly
has
preme Court
relief on
corpus
court’s denial of habeas
learning
object
upon
at trial
sel’s failure
*14
stemming from
trial
the claims
court’s
parte contact with a
of
ex
juror.
with
any
parte
of
constitutional
ex
contact
constitutes a waiver
stemming from the contact. United
claims
of
judgment
the district court
522, 528, 105
Gagnon,
v.
470 U.S.
States
AFFIRMED.
(1985).
1482,
More-
486
S.Ct.
84 L.Ed.2d
over,
constitutional
any
if there were
even
SMITH,
Judge, concurring
Circuit
N.R.
error,
that the trial
has not shown
part
part:
in
in
dissenting
contact with Juror 9 was
parte
ex
court’s
majority opin-
I
in Part II of the
concur
Spain,
v.
464
See Rushen
prejudicial.
respectfully
regard to
ion.
I
dissent with
453,
114, 117, 104
78 L.Ed.2d
S.Ct.
U.S.
I,
I
majority
Part
because believe the
mis-
curiam)
(1983)
(any constitutional
267
(per
exceptionally
applies
deferential stan-
parte contact be-
resulting from ex
error
by
required
dard of review
the Antiterror-
subject to
juror and the court is
tween
Penalty
Death
Act
ism and Effective
analysis);
v.
harmless error
United States
(“AEDPA”).
(9th
Madrid,
1090,
Cir.
842 F.2d
1093-94
review,
With the AEDPA standard of
1988) (defendant
“actual
must demonstrate
exceptionally high
set the bar
Congress
contact
parte
from ex
prejudice” resulting
ut-
ensure that federal courts afford the
juror).
trial
and a
between the
adjudica-
most deference to a state court
9 and
contact between Juror
1313,
Riley
Payne,
tion.
v.
352 F.3d
See
solely
juror’s
pertained
the court
(“This
(9th Cir.2003)
standard is
deliberations, not
to be excused from
wish
impor-
of the
properly deferential because
legal
factual or
issue
Smith’s
play
applying
tant role that state courts
Although
communication
case.
Juror 9’s
guarantees and be-
federal constitutional
jury’s
the extent of the
frustration
reveals
of
concerns that
cause
federalism
deliberations,
strengthening
with the
when we assess whether a state
evoked
that
trial court’s instruc
Smith’s claim
in vio-
system
prisoner
holds a state
and comments on the evidence were
tions
constitution.”).
lation
coercive,
contact
parte
the trial court’s ex
Therefore,
court.may
grant
a federal
itself
been shown to
with Juror 9
has not
habeas relief from a state court conviction
agree
the outcome.
with
have affected
We
it concludes that
state court’s
unless
ex
court that
state court’s
district
“(1)
adjudication
in a
of the claims
resulted
impair
9 “did not
parte contact
Juror
to,
contrary
or
decision that was
involved
fair trial”
right
because
[Smith’s]
of, clearly es-
an unreasonable
possibility
was
there
no “reasonable
law,
by
Federal
determined
tablished
exchange.”
prejudice from
States;
Court of
United
CONCLUSION
(2)
in a
based
or
resulted
decision
on an unreasonable determination
third instruction and
The trial court’s
light
presented
facts in
comment
was coercive and the
proceeding.” 28 U.S.C.
opinion
the State court
Appeal’s
upholding
Court of
2254(d)
added);
(emphasis
§
governing
Price v.
legal principles
[Supreme
Vin-
from
cent,
634, 638-39,
538 U.S.
123 S.Ct.
but unreasonably applies
decisions
Court]
(2003).
witnesses dant) He not ex- more credible. did guilt or petitioner’s notion of press any WHITEHEAD, Carol her official and also did tell innocence. He capacity Superinten as the individual obligation it had an to reach verdict. dent of Everett School District No. affirma- Further, the trial did not Defendant-Appellee. tively or ask the about poll That the trial No. 07-35867. its numerical division. jury’s divi-
judge ultimately learned Appeals, Court of United States of the specific concerns sion and Ninth Circuit. he problematic. That then holdout is selectively summarized evidence Argued and Submitted Jan. 2009. find no troublesome. But can equally Filed Sept. 2009. indicating clearly law established may not comment on the when he knows the numerical jury, no division of (when *16 requires state court
holding evidence)
commenting to recite relevant, might
and all evidence be exculpatory.
contradictory, or even majority
I with the that the evi- agree judge selectively presented
dence the juror’s (given
and summarized the holdout
concerns), may have had coercive effect at jury. may I dissent because
least reasonable conclude it did be Packer,
not. See U.S. basis, reverse the
362. On would grant court’s relief on the basis
district Appeal’s Court of deci-
that the California objectively not an unreasonable
sion was clearly
application of established precedent.