Anthony Haube v. Earl Houser ( 2021 )

FILED
NOT FOR PUBLICATION
JUN 23 2021
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY HAUBE, No. 19-36005
Petitioner-Appellant, D.C. No. 3:17-cv-00170-JKS
v.
MEMORANDUM*
EARL L. HOUSER,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, District Judge, Presiding
Submitted June 16, 2021**
Anchorage, Alaska
Before: RAWLINSON, HURWITZ, and R. NELSON, Circuit Judges.
Petitioner Anthony Haube (Haube) appeals the district court’s denial of his
habeas petition asserting that the state trial judge coerced a juror’s consent to the
guilty verdict. On habeas review, we may grant relief only if the state court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
decision was contrary to or involved an unreasonable application of clearly
established federal law. See Parker v. Small, 665 F.3d 1143, 1147 (9th Cir. 2011)
(per curiam). Federal law is comprised of holdings of the United States Supreme
Court. See id.“Clearly established federal law provides that any criminal defendant being
tried by a jury is entitled to the uncoerced verdict of that body. . . .” Id. (quoting
Lowenfield v. Phelps, 484 U.S. 231, 241 (1988)) (alterations and internal quotation
marks omitted). However, the Alaska Court of Appeals’ conclusion that the trial
judge’s post-verdict questioning did not coerce Juror B’s vote was not contrary to
or an unreasonable application of Lowenfield. See Haube v. State, No. A-10047,
2010 WL 2871078 at *4-6 (Alaska Ct. App. Jul. 21, 2010). Polling the jury is a
permissible method of ensuring unanimity. See United States v. McCaleb, 552
F.3d 1053, 1058 (9th Cir. 2009) (discussing Jenkins v. United States, 380 U.S. 445(1965)); see also Fed. R. Crim. P. 31(d). Where, as here, an issue is raised
regarding a juror’s vote, the trial judge may permissibly clarify that vote. See
McCaleb, 552 F.3d at 1058.
There is a distinction between obtaining clarity and coercion. See id.(distinguishing Jenkins). Importantly, the record reflects that Juror B never
disavowed the guilty verdict or her vote in favor of that verdict. Rather, Juror B
2
consistently expressed that she would have been more comfortable with the verdict
if Haube had clarified “what he was doing” during the relevant time period. The
trial judge carefully explained that Haube’s decision not to testify could not be
used against him, and Juror B never stated that she voted to convict Haube due to
his failure to testify.
Haube has not identified any Supreme Court case holding that a trial court’s
clarification of uncertainty in a jury verdict constitutes coercion. See Knowles v.
Mirzayance, 556 U.S. 111, 122 (2009) (“[T]his Court has held on numerous
occasions that it is not an unreasonable application of clearly established Federal
law for a state court to decline to apply a specific legal rule that has not been
squarely established by this Court. . . .”) (citations and internal quotation marks
omitted).
Haube also failed to demonstrate that the Alaska Court of Appeals made an
unreasonable factual determination. Haube contends that the trial judge neglected
to consider the “context” of Juror B’s response. However, that more than one
interpretation of the record exists does not render the interpretation adopted by the
state unreasonable. See Wood v. Allen, 558 U.S. 290, 301 (2010).
PETITION DENIED.
3