Alfred Centofanti, III v. Dwight Neven ( 2020 )

FILED
NOT FOR PUBLICATION
JUL 20 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALFRED PAUL CENTOFANTI III, No. 20-16039
Petitioner-Appellant, D.C. No.
2:13-cv-01080-JAD-PAL
v.
DWIGHT W. NEVEN; ATTORNEY MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Argued and Submitted July 8, 2020
Seattle, Washington
Before: CLIFTON, D.M. FISHER,** and M. SMITH, Circuit Judges.
Petitioner Alfred Paul Centofanti III seeks a writ of mandamus directing the
federal district court to order his release from Nevada state prison pending either
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
(i) a decision on his 28 U.S.C. § 2254 habeas petition or (ii) an effective COVID-
19 vaccine. We deny the petition.
“The remedy of mandamus is a drastic one.” Bauman v. U.S. Dist. Court,
557 F.2d 650, 654 (9th Cir. 1977). A petitioner must demonstrate “exceptional
circumstances amounting to a judicial ‘usurpation of power.’” Id. (internal
quotation marks and citation omitted). To determine whether mandamus relief is
warranted, we consider “five specific guidelines: (1) The party seeking the writ has
no other adequate means, such as a direct appeal, to attain the relief he or she
desires;” “(2) The petitioner will be damaged or prejudiced in a way not
correctable on appeal. (This guideline is closely related to the first.);” “(3) The
district court’s order is clearly erroneous as a matter of law;” “(4) The district
court’s order is an oft-repeated error, or manifests a persistent disregard of the
federal rules;” and “(5) The district court’s order raises new and important
problems, or issues of law of first impression.” Id. at 654–55 (citations omitted).
While “[n]ot every factor need be present at once . . . the absence of the third
factor, clear error, is dispositive.” Burlington N. & Santa Fe Ry. Co. v. U.S. Dist.
Court for Dist. of Mont., 408 F.3d 1142, 1146 (9th Cir. 2005).
To qualify for pre-decisional release from state prison pending a federal
habeas petition, a petitioner must show that the habeas petition has a high
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probability of success and that special circumstances justify his release. See United
States v. Dade, 959 F.3d 1136, 1138 (9th Cir. 2020) (“the prisoner must show that,
‘in addition to there being substantial questions presented by the appeal, there is
some circumstance making this application exceptional and deserving of special
treatment in the interests of justice’”) (quoting Aronson v. May, 85 S. Ct. 3, 5
(1964)). See also Benson v. State of Cal., 328 F.2d 159, 162 (9th Cir. 1964) (“It
would not be appropriate for us at this stage of the proceeding to enlarge this
petitioner on bail even if we found that the allegations of his petition for habeas
corpus made out a clear case for his release. Something more than that is required
before we would be justified in granting bail.”).
We conclude that the district court did not clearly err in holding that
Centofanti had not demonstrated that his habeas petition made out a clear case for
his release. After being convicted of first-degree murder in Nevada state court, he
seeks habeas relief on the grounds that one of the jurors did not disclose during
voir dire that she had once been convicted of a felony. He argues that her
participation in the jury violated his federal constitutional rights. He previously
made this argument to the Nevada Supreme Court, which disagreed. The court
concluded that while it appeared that the juror had intentionally concealed her
felony status, Centofanti had not shown that he was prejudiced by her conduct.
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This was because the juror’s two-decades’ old felony conviction—for obtaining
property in exchange for a worthless check—was entirely unrelated to Centofanti’s
murder charge. Because of this lack of prejudice, the court concluded that
Centofanti was not entitled to a new trial under the Sixth Amendment.
Under the Antiterrorism and Effective Death Penalty Act (AEDPA), an
application for a writ of habeas corpus may only be granted if the state court’s
adjudication “(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or (2) resulted in a decision that was based on
an unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d).
In McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556 (1984),
the Supreme Court established when defendants are entitled to a new trial due to a
juror’s concealment. To obtain a new trial “in such a situation, a party must first
demonstrate that a juror failed to answer honestly a material question on voir dire,
and then further show that a correct response would have provided a valid basis for
a challenge for cause. The motives for concealing information may vary, but only
those reasons that affect a juror’s impartiality can truly be said to affect the fairness
of a trial.” McDonough, 464 U.S. at 556.
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Courts have differed as to how to apply the McDonough test, but our court
has recently held that, for AEDPA purposes, it is not “unreasonable for [a] state
court to conclude that McDonough accommodates a prejudice analysis.” Scott v.
Arnold, __ F.3d __, No. 18-16761, 2020 WL 3408712, at *2 (9th Cir. June 22,
2020). See also Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (construing
McDonough as requiring courts to “determine whether [a juror’s] answers were
dishonest and, if so, whether this undermined the impartiality of [the] jury”). Thus,
under Ninth Circuit precedent, the Nevada Supreme Court was permitted to require
a prejudice showing to overturn a conviction, as it did in Centofanti’s case.
Moreover, it was permitted to hold that no prejudice had been shown.
As a result, we cannot conclude that the federal district court clearly erred in
determining that Centofanti had not shown a high likelihood that his habeas
petition would succeed. For this reason, though we understand that Centofanti has
a high-risk status for COVID-19, we must deny his petition for mandamus relief.
Petition DENIED.
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