Tong Xiong v. Tom Felker

by only conceivable motivation disposition sovereign until final for Court. State to have remained committed marriage definition of that has existed for HAWKINS, REINHARDT and Circuit millennia, Brown, Perry 1052, v. 671 F.3d in Judges, concurring the denial of (9th Cir.2012). worse, Even we have rehearing en banc: overruled the will of seven million Califor- col- puzzled dissenting are our Proposition nia 8 voters based on a read- leagues’ unusual reliance on the Presi- ing of Romer that unrecognizable would be Constitution, regarding dent’s views joined it, to the Justices who to those who especially as the President did not discuss it, judges dissented from and to the from the narrow issue that we decided in our sister circuits who have interpreted since only opinion. We held under it. roundly We should not have so particular relating circumstances to Cali- trumped California’s democratic process 8, Proposition fornia’s that measure was discussing without at least unparal- this governing In line with the rules invalid. leled an decision as en banc court. issues, judicial of constitutional resolution many For of the same reasons discussed ques- not resolve the we did fundamental Judge in dissenting N.R. Smith’s excellent to: whether tion both sides asked us opinion case, in respect- this momentous I prohibits the from the Constitution states fully That banning marriage. ques- grant same-sex dissent from the failure to future, in may tion be decided the near but petition rehearing for en banc. case, so, it should be in some other

some other time.

O’SCANNLAIN, joined Judge, Circuit BEA, BYBEE Judges, Circuit

dissenting denying from the order

rehearing en banc: XIONG, Petitioner-Appellant, TONG

A ago, subsequent few weeks to oral case, argument this the President of the v. ignited a media United States firestorm FELKER, Warden; Attorney Tom Gen- announcing that supports he same-sex California, eral for the State of marriage a policy Drawing as matter. less Respondents-Appellees. attention, however, were his comments that the Constitution left this matter to the No. 09-16830. things States and that “one of the Appeals, United States Court of [hej’d like to see is—that conversa- [the] Ninth Circuit. in respectful way.”1 tion continue Today any our court has silenced such 12, Submitted March 2012.* respectful conversation. Based on two- Filed 2012. June judge majority’s gross misapplication of Evans, Romer v. (1996), 134 L.Ed.2d 855 we have now

declared that must animus have been * Roberts, News, panel unanimously

1. Interview Robin ABC concludes this case is Obama, argument. Barack with President of the United suitable for decision without oral States, 9, 2012). 34(a)(2). Washington, (May R.App. D.C. See Fed. P. SMITH,

Opinion by Judge MILAN D. JR., Judge; by Judge Circuit Dissent NOONAN.

OPINION SMITH, M. Judge: Circuit This presents case three certified issues which we review under the Anti-terrorism (AED- Penalty and Effective Death Act 2254(d): (1) PA), § 28 U.S.C. whether Pe- Tong titioner-Appellant Xiong’s (Xiong) process rights federal due were violated when the trial court construed California law to allow to refuse to discuss alleged their deliberations misconduct trial; after whether misconduct involving unsolicited observations of some jurors deprived Xiong right of his to an impartial jury; Xiong and whether re- ceived ineffective assistance of counsel due elicitation of counsel’s unfavorable ex- testimony pert on cross-examination. mistrial, an Following Xiong initial degree convicted of second murder with aggravating Xiong enhancements. re- life, years ceived sentence of 40 with Xiong appealed firearm his enhancement. Ap- conviction to the California Court of peal multiple grounds, including on insuffi- evidence, cient ineffective assistance of counsel, and misconduct. The Court CA, Adraktas, Stephanie Berkeley, M. on the single vacated sentence for the petitioner-appellant. enhancement, all firearm but affirmed on counts, thereby reducing Xiong’s other Farrell, Harris,

Kamala D. Michael P. years Xiong 15 to life. subse- sentence to Krenzin, Sokoler, Tami M. Kenneth N. quently petition filed a habeas the Unit- Justice, Department California Sacra- Eastern ed States District Court for the mento, CA, respondents-appellees. for the California, pursuant District of to 28 2254(d). § U.S.C. case,

Under the facts of this as con- trolled the Antiterrorism and Effective (AEDPA), Penalty Act Death U.S.C. 2254(d), § the may only we reverse state NOONAN, jurist Before: JOHN T. M. court’s conviction no fair minded McKEOWN, petitioner’s clearly MARGARET and MILAN could conclude SMITH, Jr., Judges. rights, D. established constitutional as estab- Circuit (Fue). brother, testimony the of his Fue of the United

lished States, hold that a hos- prosecution were not violated. We called as When decision Appeal’s witness, Court of California tile Fue testified on direct exami- application an unreasonable was not many not remember nation that he could and Fourteenth Amendment Xiong’s Sixth of- questions answers to about stringent AEDPA’s stan- rights under alleged gang affiliations that he fenses and dards, we affirm the decision of interviewed previously given had when petition for denying Xiong’s court district impeached by He was police. corpus relief. habeas prosecution, played videotape which clearly lucid police interview which a AND BACKGROUND FACTUAL had shot some- Fue stated his brother PRIOR PROCEEDINGS cross-examination, Fue testified one. On were Xiong and two co-defendants before, that he had been “knocked out” murder, charged discharging a fire- with memory problems, easily had and was con- dwelling, discharging arm at an inhabited Fue that he could not fused. testified person a motor vehicle at a a firearm from testimony gave during even recollect he vehicle, discharging a fire- not in the cross-examination, and did his direct and arm from a motor vehicle. Additional en- reading transcript of his not remember including sought, hancements were also police morning during interview that his enhancements, a criminal several firearm testimony. Fue also testified that he could enhancement, gang special and the street identify the President United degree circumstance of intentional first States or the Governor of California. by discharging a fire- perpetrated murder During days the course of Fue’s two arm from a motor vehicle. The state Ten, Three, testimony, Jurors Nine and in trial a court declared the first mistrial passing, talking hallway Fue in a observed jury after the was unable to reach a ver- phone on his cell in a clear and coherent Xiong’s gave dict. conviction on retrial declaration, manner. In a Juror Nine petition rise to the for a writ of habeas stated that Fue’s out-of-court demeanor corpus appeal. at issue in this jury during was discussed the its delib- Xiong’s ineffective assistance of counsel eration, but later corrected the declaration during claim arises out of an incident the only to state that this information was prosecu- cross-examination of one of the jury already discussed after the had found expert During tion’s witnesses. cross-ex- impeach- Fue not credible based on the amination, counsel elicited unfavorable tes- presented. ment evidence timony prosecution’s gang expert, from the in to the effect that individuals a car with a Xiong ultimately guilty found of all was mentality,” com- “gang present during the counts, including degree' second murder. crime, promoting mission of a would be jury at his retrial also found that solely gang activity presence. their Xiong acted in the firearm principal as Specifically, prosecution’s gang expert the offense and that he the committed offenses car, in testified that while “whatever gang. for the benefit of a criminal street encounter, they happens and whatever] However, jury rejected the an additional they are all down for That’s how [it]. Xiong’s personal enhancement for use of a gangsters work.” Ultimately, Xiong firearm. was convicted years and sentenced to a term of 15 to life fair trial im-

Xiong’s process, due and murder, partial jury for the as well as a consecutive claims arise out of the relating years term the consideration of extrinsic evidence of 25 life for firearm evidence, on the remain- hancements for insufficient but Sentences enhancement. stayed, judgment for a total sen- the were affirmed on all other ing counts years to life. Xiong’s tence of 40 grounds. sentence was reduced to years to life. jury rendered the verdict After the attorney learned discharged, Xiong’s Xiong petition filed for writ of habeas of Fue outside jurors’ of the observations in corpus grounds the district court on the Xiong’s counsel re- courtroom. of the of ineffective assistance of counsel and court release con- quested that the magistrate misconduct. A judge filed so that he could investi- tact information findings denying and recommendations 22, 2004, matter. On October the gate the Subsequently, both claims. the district Xiong found that had shown trial court adopted magistrate judge’s court find- jurors’ for disclosure of the good cause ings and recommendations their entire- However, information. court contact ty. Xiong timely appealed. jurors that it would contact the indicated first, jurors if did not want to be OF STANDARD REVIEW matter, then the law enti- heard about the review the district court’s de pro- decline to discuss the tled them to petition nial of habeas de novo. following hearing, In the ceedings. Duncan, 897(9th Yee v. 463 F.3d Cir. informed con- parties that it had court 2006). AEDPA, may grant Under we not jurors writing about the de- tacted petition adjudication his “unless the request for contact information and fense’s (1) resulted in a decision that was claim— if jurors it also informed the had to, an contrary or involved unreasonable they respond, they would be treat- did application of, clearly established federal they did not wish to be contacted. ed as law, as determined jurors Ultimately, ten of the twelve re- States; or resulted in a United ultimately sponded, three of whom indicat- decision that was based on an unreason they want to be contacted in the ed didn’t in light able determination of the facts remaining pro- future. The seven presented in the court the evidence State their contact information. vided 2254(d) § proceeding.” (empha 28 U.S.C. 14, Xiong On December 2004 filed added); Johnson, Penry sis see also v. 532 ground trial motion for a new on the 792-93, 1910, 782, 121 U.S. S.Ct. 150 Xiong’s motion included misconduct. (2001); Taylor, L.Ed.2d 9 Williams v. 529 5, 10, from 9 and dis- declarations Jurors 362, 402-03, 1495, 146 120 S.Ct. U.S. cussing jurors’ the observations of Fue Terhune, (2000); v. L.Ed.2d 389 Lockhart hallway. hearing court held a the The Cir.2001). (9th 1223, 250 F.3d 1229 subsequently Xiong’s denied motion on the law” means “Clearly established federal Xiong prejudice that suffered neither basis governing legal principle principles “the or jury’s exposure nor actual bias from the to at the Supreme set forth the Court the extrinsic evidence. time the state court renders its decision.” challenging the suffi- Xiong appealed, Andrade, 71-72, 63, Lockyer v. 538 U.S. conviction, ciency of the evidence of his the (2003). 1166, 155 L.Ed.2d 144 require jurors to to court’s refusal Under AEDPA’s first clause re with the discuss their deliberations defense questions of law under section garding cause, jury’s and the consider- upon good 2254(d)(1), “contrary “unrea to” and ation of the extraneous evidence. The application” analyses are distinct. sonable Appeal reversed the California Court 2254(d)(1). may grant § gang criminal street and firearm use en- 28 U.S.C. We 1074 Strickland, 698, at 104 2052 corpus under the 466 U.S. S.Ct. writ of habeas

federal court “contrary only to” clause the state component of ineffective assis- (prejudice opposite a conclusion to arrives at mixed of law and question tance claim was ques on a Supreme reached Court fact); Woodford, v. 384 F.3d see also Davis or if the state court decides tion of law (mixed (9th Cir.2004) 628, questions of 637 differently Supreme than the Court case 2254(d)(1)). § law are evaluated under “materially indistinguishable” on a set of Williams, at 529 U.S. S.Ct. facts. ANALYSIS the “un may grant relief under 1495. We Jury I. Misconduct Claim only if the application” clause reasonable juror dispute There is no miscon- correctly govern identifies the state court jurors duct occurred when some consid- unreasonably ap ing legal principle but discussed, ered, and later Fue’s conduct of the case. particular it to the facts plies “decision, hallway. court’s here Id. We look to state the courtroom issues reasoning,” to opposed (1) to its determine as Xiong’s clearly are whether established applica it was an “unreasonable whether right a fair trial violated when the was clearly Supreme Court tion” of established attorney trial court refused to allow his McGrath, v. 426 F.3d precedent. Merced directly jurors regarding juror contact Cir.2005) added). (9th 1076, 1081 (emphasis misconduct after those indicated determine, enough It for us to in our is case; they unwilling were to discuss the independent judgment, the state Xiong’s clearly and whether established incorrect, decision was or even er court’s right impartial jury to a fair trial and Williams, roneous. violated consideration of ex- inquiry strictly 1495. Our limited S.Ct. trinsic evidence. We hold Califor- application to whether the state court’s unreasonably nia did not Court clearly Supreme prece established apply legal principles the relevant set forth “objectively final dent in its decision was under the Sixth unreasonable.” Id. Fourteenth Amendments when it denied governs second clause AEDPA’s investigate Xiong’s requests factual arrived at in basic determinations misconduct, preju- it no and when found light of all the evidence in state court Xiong. dice to 2254(d). § proceedings. 28 U.S.C. may only grant findings relief for factual Jury Scope A. The Misconduct “objectively Tay that are unreasonable.” Inquiry did not Violate (9th Maddox, lor v. 366 F.3d 1007-08 Right to Due Process. Cir.2004). objectively Factual findings are that trial court Xiong contends de- they by if unsupported unreasonable are him prived process rights by of his due evidence in the court rec sufficient state jurors they that informing the after trial However, questions Id. mixed of ord. law obligated speak were not to with the de- fact, including prejudice and determi right fense in violation of his to a fair trial jury nations misconduct and ineffective impartial jury. Specifically, Xiong and an petitions, gener assistance of counsel are by that trial court allow- argues erred 2254(d)(1), ally reviewed under section not jurors their ing to refuse to discuss delib- 2254(d)(2). section See v. Caliendo War good erations once he had established 691, Colony, Men’s F.3d den Cal. 365 of for contact infor- (9th Cir.2004) (en banc) (determi cause the release their 693-94 pursuant mation to California Code of Civil juror prejudice nation of misconduct fact), question of Procedure sections 206 and 237. case was mixed law and

1075 First, investigation trial we hold that misconduct ju trial, post-trial rights at his forfeiture under regarding claim California law See, defaulted.1 Under proeedurally rors is e.g., constitutes default. procedural doctrine, courts default federal procedural Calderon, (9th 1064, Rich v. 187 F.3d 1070 law question not review a federal Cir.1999). will court if the by decided a state

previously Second, Xiong’s claim that the law decision rests on state state court’s trial court rights violated his constitutional law that of federal ground independent is by failing require to that all the former support judgement. to Cole adequate jurors questioned be under oath also fails. 729, 722, 111 501 U.S. Thompson, man v. petition “Habeas claims not raised in the (1991). 2546, A L.Ed.2d 640 S.Ct. 115 court are cognizable before district un procedural independent default is state Montana, appeal.” Belgarde on v. 123 primarily “to rest on feder appears less it (9th Cir.1997) (internal 1210, F.3d 1216 with appears al law or to be interwoven omitted). quotation marks In his habeas 734, law.” Id. at 111 S.Ct. 2546. federal petition, Xiong not claim did that the Con adequate A default is it procedural state “ stitution him to require entitled the former regularly fol ‘firmly is established and jurors testify, to District Court it to lowed’ the time as of which be adjudicated Xiong never such claim. 411, Georgia, Ford v. 498 U.S. applied.” only claimed that deprived court (1991). 424, 850, 111 112 L.Ed.2d 935 S.Ct. him process prohibiting of due his at only default if he petitioner may avoid torneys speaking jurors from to former prejudice, can cause and or establish who did not want to discuss the case. the claim will result in a failure to consider Xiong ground did not raise this in his miscarriage justice. Cole fundamental relief, petition for habeas nor has it been man, 750, 111 2546. 501 U.S. S.Ct. appeal. Accordingly, Xiong’s certified on trial, object at Although he did not claim that the trial court rights violated his claim that the trial court Xiong raised his failing jurors that all require to former process by informing him deprived of due questioned cognizable under oath is not be they were not re the former Belgarde, here for lack of certification. speak during the defense its quired with 123 F.3d at 1216. investigation to the post-verdict California The California Supreme Court. Jury’s B. The of Ex- Consideration petition without com Court denied his Prejudice trinsic Evidence did not rea “Looking through” ment. to the last Xiong. court, decision a state the Cali soned Extraneous influences on a held, in part, fornia Court of circumstances, can, under some re Xiong by failing had forfeited his claim quire the reversal of a conviction. Parker Nunnemaker, object at trial. Ylst v. 501 Gladden, 363, 364-65, 3, 2590, v. U.S. n. S.Ct. (1966). (1991). Indeed, “evi 17 L.Ed.2d 420 Accordingly, L.Ed.2d 706 because must object post- developed against to the court’s dence defendant Xiong failed (1989) Xiong’s proeedurally (prohibiting the use 1. Even if claim were not 103 L.Ed.2d 334 law, defaulted, even by the lack of of a "new rule” of constitutional or it would be barred setting, controlling, clearly Supreme applied in a novel to established settled rule 2254(d) Authority, retroactively corpus proceed- § apply and under in habeas Court under ings Teague v. Lane. a final state criminal convic- the "new rule” doctrine of invalidate 288, 299-301, 310, 1060, tion). 489 U.S. 109 S.Ct. 1076 authority pertaining stand.” v. constitutional exists

come from the witness Fields (9th Cir.2007); facts, Brown, 755, compelled are unique 779 this set of we 503 F.3d Louisiana, scope under the narrow of AEDPA to hold Turner v. see also 546, 466, 472, 424 that the did not 85 13 L.Ed.2d California Court S.Ct. (1965) unreasonably apply clearly established Su- (holding requirement precedent on the in violation of preme verdict must be based Court Amendment developed “goes at trial to the Sixth and Fourteenth evidence integrity rights. fundamental of all that is em concept in of trial braced the constitutional outset, At critical factual distinctions by jury”). Generally speaking, “[p]rivate Supreme jurispru- exist between the Court communications, possibly prejudicial, be regarding juror dence misconduct and the persons, or wit tween and third in In misconduct at issue this case. Mat- nesses, charge, or the officer in are abso tox, Supreme held that the trial Court verdict, forbidden, lutely and invalidate the court committed reversible error refus- at their is made least unless harmlessness ing jury to consider affidavits from the States, appear.” Mattox v. 146 United previously where the bailiff had remarked 140, 142, 50, 13 36 L.Ed. 917 U.S. S.Ct. jury to the that the victim was the third (1892). However, this does not mean person that the defendant killed and that per preju all extraneous information is se the defendant had been tried for his life dicial; contact with wit certain extrinsic 141-42, once before. 146 U.S. at 13 S.Ct. nesses, such as contact involved with Mattox, Moreover, jury 50. in also hall,” [jurors] may ulti “passing newspaper considered an outside article mately be found to be de minimis and not stating against that the evidence the de- Caliendo, F.3d at prejudicial. See 365 very strong, fendant was he Beto, 1052, v. 405 696(citing Gonzales U.S. lucky if would be he was not convicted. (1972) (mem 92 31 L.Ed.2d 787 S.Ct. 150-52, Remmer, at Id. 13 S.Ct. 50. In concurrence)). orandum dissent and Mattox, held, Supreme citing

presumption prejudice that arises from that the trial court’s denial of a motion for misconduct, juror although strong, is not new trial was erroneous where someone conclusive; heavily upon “the burden rests told the foreman of the that he “could establish, the Government to after notice profit by bringing in a verdict favorable” defendant, that hearing to and such case, to the defendant in a tax evasion an juror with the was to the contact harmless jury. affirmative effort to influence the States, defendant.” Remmer v. United 347 U.S. at 74 S.Ct. 450. Turner 227, 228-29, 74 98 U.S. S.Ct. deputy provided involved two sheriffs who Mattox); see (applying L.Ed. key testimony overseeing while also Caliendo, at also 365 F.3d 696. jury during sequestration, during which they up rapport ju- time built with the Xiong argues that he de resulting rors “a continuous and inti- prived right of his to a fair trial and an juror jury throughout mate association” with the impartial jury because of misconduct 473-74, the trial. 379 involving the consideration of extrinsic evi U.S. Parker, testimony. dence to Fue’s 546.2 In pertaining granted the Court habe- disagree. controlling To the extent that as relief after the bailiff told one of the banc, Sitting already 2. en we have once dis- conduct at in Turner issue was both "contin- tinguished clearly Caliendo, Turner from other estab- [and] uous intimate." 365 F.3d at precedent involving lished 2. 695 n. that the mis- misconduct on basis

1077 juror guilty and a extreme cases of misconduct: “We defendant was jurors that the encounter, fellow,” another occasion deal here not with a brief but and on “wicked wrong with anything that if were with continuous and intimate associa- told them verdict, three-day would throughout the Court tion trial —an asso- guilty 363-66, 87 S.Ct. gave it. 385 U.S. at ciation which these an op- correct witnesses here, contrast, nature and In the ... portunity friendships 468. to renew old and with the of the interference magnitude acquaintances among make new the mem- different; very 473, were jury’s jury.” deliberations bers of the 379 U.S. at 85 S.Ct. jurors’ three consisted of the misconduct (emphasis). 546 Nowhere in Turner does observa- discussions about unsolicited mention, overrule, brief the even let alone Court witness, made of a unbe- they tions had or Remmer. Mattox 379 U.S. 85 him, of in the normal course knownst to finding S.Ct. 546. The Court’s that the Because at the courthouse. their activities conduct was was based funda- prejudicial all involved Amendment cases the Sixth mentally upon the extent and nature of the cases, in significant, more and some much jurors, contact between the witnesses and with the delibera- deliberate interference prof- and the fact that the Government the nature of the misconduct process, tion “nothing depu- fered to show what the two from factually distinguishable here is ties discussed in their conversations with Su- clearly Sixth Amendment established jurors.” the at 85 546. Id. S.Ct. precedent. preme Court Thus, prejudice the “inherent” arose in grounded in Turner was not the fact of Remmer, Nonetheless, even if se, colleague as our per misconduct control, Mattox, did Turner and Parker contends, and “inti- but the “continuous” unreasonably not of did mate” nature of the association between in The apply Supreme precedent. jurors prosecution and the witnesses. ex jury’s consideration of quiry into a (“And if it could be assumed that Id. even at does not end whether trinsic evidence did discuss the case deputies never occurred; finding of upon misconduct jury, it directly any with members of misconduct, of presumption a rebuttable blinking reality recognize not to would be Remmer, at 347 U.S. prejudice applies. this con- prejudice the extreme inherent in 228-29, The dissent mis 74 S.Ct. 450. throughout the trial be- tinual association holding that takenly interprets Turner as key these two wit- tween the and any per prejudicial, such misconduct is se (emphasis prosecution.”) nesses for the case. Mattox but this is added). that, although it carries a Remmer teach burden, may over heavy the Government Caliendo, our court’s holding The prejudice with presumption come the petition of a for most recent consideration of ex consideration proof misconduct, fur- habeas relief due to harmless. See Mat trinsic evidence was appli- misguided the dissent’s exposes ther 50; tox, at Rem 146 U.S. S.Ct. Turner, Mattox, and Remmer. cation of mer, 228-29, 450. banc, in Sitting en F.3d at 695-96. Caliendo, upon we relied Mattox cir- dissenting colleague seeks to Our establishing widely accept- Remmer as limita- Mattox’s and Remmer’s cumvent finding rule that a bright-line ed prejudice presumption tion on the gives presumption rise to a Turner, misconduct de- contending having been with may only be rebutted time, prejudice Again, later in controls. cided contrary proof of harmlessness. strong, logic misguided. selective dissent’s (“We Turner, and other circuits Court, analysis 365 F.3d at 696 confined its ord, that a merely have held Mattox established the extraneous evidence was bright-line Any rule: unauthorized com- duplicative jury’s findings on Fue’s juror munication between a and a witness Moreover, credibility. Ap- of party presumptively preju- or interested is rejected peal Xiong’s argument that dicial, government may but the overcome jury’s observations of Fue outside the presumption by making strong con- reliability court bolstered the of his in- (internal trary showing.”) citations omit- criminatory jury statements because the ted). Moreover, Caliendo, in we distin- rejected incriminatory the most of Fue’s Turner, here, guished as we do on the Xiong out of court statements —that had grounds particular that the nature of mis- admitted that he shot the victim—in re- conduct at issue in was “neither Caliendo jecting personal use of a firearm en- intimate,” continuous nor as it in Tur- was hancement. n. in analysis ner. Id. at 695 2. Our Cal- Appeal clearly The Court of undertook iendo makes clear that the dissent’s at- to determine presumed preju- whether the Turner, tempt rely upon ignore and to dice to Xiong jury from the misconduct Mattox, fatally Remmer and distorts this harmless; was it entirety reviewed the long-established bright-line rule. the record and made a reasonable factual The Government that conceded miscon- determination that Xiong preju- was not occurred, thus, presumption duct diced either the extrinsic evidence’s prejudice question arose. The before us Accordingly, influence or actual bias. even now is whether the California Court of Remmer, Mattox, if Turner and Parker Appeal unreasonably applied pre- controlled, Appeal the Court of did not sumption prejudice finding in that the unreasonably apply misconduct was harmless. hold that it required the Court’s not. Appeal explained, did The Court of prejudice presumption. opinion, Xiong prejudiced its was (1) “the extraneous material was ‘inherent- II. Ineffective Assistance of Counsel ly substantially likely influ- have Claim ” juror,’ enced the or given “the nature prove To ineffective assistance of the misconduct and the cir- surrounding counsel, a defendant must show that cumstances ... it substantially likely circumstances, considering all the counsel’s juror actually against was biased performance poor was so that it fell below In denying Xiong’s the defendant.” mo- objective reasonableness, an standard of upon tion for new trial based jury mis- prejudiced and has the defendant. Strick conduct, the Court of reasoned 668, Washington, 688-89, land v. that the extraneous information was 2052, (1984). 104 S.Ct. 80 L.Ed.2d 674 likely, objectively, to have influenced the Reviewing apply “strong pre courts

jury’s verdict because the “observations of sumption” performance that the counsel’s Fue outside the during courtroom range within the “wide of reasonable merely were cumulative of what the professional assistance.” at Id. witnessed on the videotaped interview.” petitioner S.Ct. 2052. The must show fact, In credibility regarding Fue’s ina- his the counsel’s errors were so serious that bility prior testimony to recall already had functioning “counsel was not as the ‘coun trial, impeached been at point to the where guaranteed sel’ the defendant the Sixth it had been deemed “comical.” Ultimate- Amendment.” at Id. 104 S.Ct. 2052. ly, the of Appeal any found that because, beyond And incompetence, petitioner misconduct was harmless upon objective based prejudice. facts the rec- must show Id.

1079 enough requisite the is not demonstrate the Prejudice only is established 2052. likelihood a reasonable incompetence, prejudice, trigger shows nor petitioner er- that, unprofessional counsel’s 2254(d) but for ju- § A protection. “fairminded rors, would have been different. the result could conclude that the rist” cross-exami- — Richter, U.S.-, 131 Harrington v. nation did not constitute ineffective assis- (2011). “The 624 178 L.Ed.2d S.Ct. Accordingly, tance. we affirm the district result must be of a different likelihood deny Xiong’s petition for of ha- court and substantial, just Id. at conceivable.” for corpus beas relief ineffective assistance did not cite The of 792. Court counsel. of part the two explicitly apply or Strickland Nevertheless, the that case. analysis from CONCLUSION Xiong’s adjudication of Appeal’s of Court hold that the California Court of counsel claim did ineffective assistance denying Xiong’s Appeal’s decision motion in a decision that was con- not “result[ ] an objectively for a new was not to, ap- an unreasonable trary or involved Early application clearly v. unreasonable estab- of’' See plication Strickland. 3, 8, Packer, 154 law, 123 S.Ct. 537 U.S. lished federal as determined the that (holding state L.Ed.2d 263 foregoing For the rea- Supreme Court. required to cite or even be courts are not sons, of Xiong’s the district court’s denial controlling Supreme prece- Court aware of is petition corpus for habeas AFFIRMED. dent, reasoning nor long “so as neither con- of the state-court decision the result NOONAN, Judge, dissenting: Circuit precedent]”). [Supreme tradicts Reversing a conviction of murder that AEDPA, Therefore, must affirm. under we had been affirmed cross-examination, defense coun- During Louisiana, writing for Justice Stewart upon based gang expert, sel asked justices, the nine stated: eight of he assumed that whether hypothetical, goes question [before Court] The acting in the car were gang members trial which the the nature presence. mere At the concert their Fourteenth Amendment commands Xiong argued that his Appeal, Court of by jury is has when trial what State attorney ineffective assistance rendered accord. purported to that eliciting gang expert’s opinion Louisiana, 466, 471, 85 Turner v. 379 U.S. present who are at a crime gang members (1965). 546, 13 L.Ed.2d 424 S.Ct. necessarily intend to aid and abet scene gang Ap- other members. The Court of turned to an earlier case Justice Stewart merits, claim on the peal dismissed this stated: involving jury misconduct and Xiong had mischaracterized reasoning that in that case is con- “What the Court said expert’s testimony to be some- gang went trolling Id. Justice Stewart here[.]” further, not, that thing it was the earlier case’s statement repeat on to expert spoke within the confines Califor- be based juror’s] verdict must “[a gang expert testimony on prohibition nia’s trial.” developed evidence at the upon the spe- about whether a defendant harbored v. (quoting 546 Irvin Id. at 85 S.Ct. cific intent. counsel took a calcu- Dowd, 717, 722, 1639, testimony attempt lated risk in an to elicit (1961)). L.Ed.2d 751 elicit; ultimately that he was unable to continued: Justice Stewart elicited cross-examination testi- instead he verdict requirement expert that mony prosecution’s from the Strickland, the evidence devel- upon this “must be based unfavorable. Under from the fundamen- Fue. This evidence did not come goes at the trial” to the oped stand. It came from the corridors embraced in witness integrity tal of all of the court. concept .by of trial the constitutional jury.... hallway in a Juror Nine observed Fue speaking phone on his cell several times sense,

In trial the constitutional days during which he was a over the two im- necessarily in jury a criminal case appear witness at the trial. Fue did not very that the “evidence plies at the least be confused to Juror Nine. Fue “had his a defendant shall developed” against together.” act Juror Nine stated that public stand in a come from the witness Fue’s out-of-court demeanor was discussed judicial there is full courtroom where jury during its deliberation. At a right of the defendant’s of protection subsequent hearing, repudiat- Juror Nine cross-examination, confrontation, of ed his that he could hear what statement happened in this case of counsel. What phone. He did not Fue said on cell guaran- basic operated to subvert these that Nine deny he observed Fue. Juror by jury. trial tees of any in now declared reference Turner, 472-73, 379 U.S. at 85 S.Ct. 546. jury room to observation of Fue on the cell jury by particu- of the Contamination jury phone came after the had decided particular degree lar source or to a is not testimony that Fue’s not credible. the focus of the Court. Justice reported Ten and Juror Juror Five also Stewart states the evidence before they had observed Fue in out-of-court in jury must come from the witness stand phone cell conversation. room is left public courtroom. No for jurors’ On the basis of the three declara- dribble of relevant information snatched tions, the defense moved for a new trial. corridors of the court from the undisci- hearing, After a the trial court stated: plined jurors. “Now, the in that I misconduct this case credibility At in issue our case was the find is that discussed those Xiong, younger of Fue brother of the phone jury conversations in the delibera- given videotaped defendant. Fue had presumption tion room.” There was a of police identifying statement to the the de- prejudice. prosecution The had the bur- fendant as the shooter. At the time of this rebutting den of it. statement, years Fue was fifteen old. The trial court went on to determine later, years At brother’s trial six his Fue prosecution whether the had met its bur- was treated as a hostile witness den. The court first ruled that “the extra- prosecution. He denied that his brother in prejudicial neous information was not so had confessed. Fue testified that he had and of itself as cause inherent bias.” memory problems arising from occasions The court then reviewed inconsis- where he had been knocked out. He testi- testimony. in In tencies Fue’s courtroom memory fied that his deteriorated and he contrast, stated, “In the trial court key became confused when stressed. A videotaped statement he was clear on all question jury for the was whether it should the essential details.” The trial court then videotape believe Fue on the or on the looking totality ruled that at the of the witness stand. no evidence there was substantial likeli- jury any

Several members of the made ob- of actual of hood bias relative credibility jurors.” servations relevant to the majority deprive Turner of The its force the California Court appeal,

On direct Remmer, District Appellate by citing Third a decision of the Su- for the Turner preme predating stating held: record, here, leads presumption mis- Our review dicta trial court’s deter- to concur with the maj. op. us conduct is rebuttable. See suffered no mination that defendant majority’s precedent use of 1076-77. ques- the misconduct from prejudice turns the dicta and decisions the Su- actu- tion, objectively or on either based down. The earlier preme upside al bias. case, moving in a towards the ulti- dicta that, the trial court agree with influence, prohibition of outside are mate information objectively, the extraneous a the gloss now turned into on definitive the have influenced likely not to way It’s an odd to resolution of the issue. trial court’s obser- accept the jury. We controlling authority. read not a credible wit- that Fue was vation gives approval in Turner to a Nothing memory lapses while and that his ness determining court information re- “comical,” the tran- testifying were as jury the trial is testimony the ceived the outside supports of Fue’s script The court con- court’s assessment. if the information is not too permissible trial in court with his trasted Fue’s demeanor in Turner prejudicial. Nothing indicates interview, in which Fue was videotaped may upheld by verdict be Al- all details.” “clear on the essential judge appellate the trial or the court decid- not videotaped interview is though the credibility of the witness as to ing the court, the omitted] before this [footnote jury the had information not ob- whom interview confirms transcript of that a permit at the trial. To state tained recall, in difficulty with that Fue had no a trial in this court to validate appellate responses to his marked contrast informal way impair and intrusive is to the Thus, of at trial. observations questions jury trial. integrity of the during trial outside the courtroom Fue claim jury The state asserts that defendant’s merely of what the were cumulative videotaped Supreme interview “because there is no witnessed on is barred unlikely to have influenced authority addressing and were whether and Court jury. juror’s a jury’s discussion of when the courtroom vio- C048798, observations outside the 2006 WL People Xiong, v. No. 2006). process or (Cal.Ct.App. right at *14 Oct. to due lates defendant’s Inconsis- any right.” constitutional other opinion review is of the of the Cali- Our on to address Tur- tently, the state moves the last reasoned Appeal, fornia Court of holding that the quotes from its ner courts. judgment of the state the evi- “must be based on jury’s verdict court confirmed appellate The California developed at the trial.” The state dence found: the trial court had what requirement this but does not deal with informa- jury had before it “extraneous Turner, saying Turner distinguish seeks jury in trial. presented not to the tion” contact made with addressed external court, trial the California Following the the misconduct of jury, not “objectively” Appeal of held Therefore, argues, the state themselves. likely was “not extraneous information the issue “squarely” not face Turner does jury.” Id. The Cali- have influenced the that does But it is the state this case. on to find Fue fornia Court of went face Turner. squarely witness. not to be credible jury Turner holds that a must decide a M.M.; E.M., individually and on behalf jury presented

case on the evidence to the son, C.M., of the minor Plaintiffs- Any the courtroom. other source of Appellants, jury information is excluded what trial demands. The observations of Fue v. and the discussion of those observations DISTRICT, LAFAYETTE SCHOOL destroyed ability its to act as a Lafayette agency; local educational Contaminated, jury. “the nature” of a tri- Education; Board of California De- retrieval, by jury beyond al disappeared partment (CDE); of Education Jack repair, binding or excuse. Under federal O’Connell, Superintendent as State constitutional law as determined Instruction for the Public State Xiong United States California; Department California to a uncontami- entitled new before (DGS), operating General Services as jurors. nated the California Office Administra- Hearings (OAH); Bush, tive opinion Will as

The of the court our case cites State Director of the four cases in which the California De- United States Su- partment Services, of General Defen- preme Court found misconduct re- dants-Appellees. quiring opinion new trial. The distin- guishes by saying these cases that each No. 10-16903. jury. involved outside influences on the Appeals, United States Court of That difference is correct. It is not a Ninth Circuit. difference that the Supreme Court drew. It defying holding distinction Argued and Submitted Dec. 2011. Turner as to what integrity constitutes the Filed June 2012. jury. of the opinion of the court in our case copies the error of the California Court of

Appeal weighing the effect of the con- finding

tamination and miscon-

duct harmless. That themselves

made out-of-court observations and dis-

cussed these observations with their fellow

jurors was at least as corrosive of the

process as the comments of a bailiff or a

guard integrity to ensure the

deliberations. Turner drew a clear and

bright line. California crossed it.

Case Details

Case Name: Tong Xiong v. Tom Felker

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jun 5, 2012

Citation: 681 F.3d 1067

Docket Number: 09-16830

Court Abbreviation: 9th Cir.