David Murray v. L. McEwen , 673 F. App'x 669 ( 2016 )

FILED
NOT FOR PUBLICATION
DEC 15 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID MURRAY, No. 14-55834
Petitioner-Appellant, D.C. No.
2:12-cv-01022-PSG-AS
v.
L. S. MCEWEN, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted December 8, 2016**
Pasadena, California
Before: NGUYEN and OWENS, Circuit Judges, and KORMAN,*** District Judge.
David Murray, a California state prisoner, appeals from the district court’s
denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his convictions
*
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).
***
The Honorable Edward R. Korman, United States District Judge for
the Eastern District of New York, sitting by designation.
for offenses including rape, sodomy and oral copulation by force, robbery, and
kidnapping. Murray contends that he was denied his Sixth Amendment right to an
impartial jury by (1) actual bias on the part of the jury foreperson (Juror No. 5),
who commented that guilty people request jury trials, and (2) three other biased
jurors who failed to disclose information during voir dire but then made statements
about their personal experiences during deliberations.
The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)
governs this petition. Murray argues that the California Court of Appeal (CCA)’s
decision, the last reasoned state court decision addressing his contentions of juror
bias and misconduct, was contrary to and an unreasonable application of clearly
established federal law and was based on an unreasonable determination of the
facts, and that the district court therefore erred in denying his petition. See 28
U.S.C. § 2254(d). As the parties are familiar with the facts, we do not recount
them here. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, 2253(c), and we
affirm.
First, Murray fails to show that the CCA’s determination that Juror No. 5
was not actually biased against him was an unreasonable determination of the facts
in light of the evidence presented in state court. Actual bias is a question of fact
and is therefore accorded deference under 28 U.S.C. § 2254(d). Estrada v.
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Scribner, 512 F.3d 1227, 1240 (9th Cir. 2008); see also Fields v. Brown, 503 F.3d
755, 767 (9th Cir. 2007) (en banc) (“Actual bias is typically found when a
prospective juror states that he can not be impartial, or expresses a view adverse to
one party’s position and responds equivocally as to whether he could be fair and
impartial despite that view.”).
The evidence supported the CCA’s determination that Juror No. 5 was not
actually biased against Murray, whether that determination was implicit or explicit.
See Tinsley v. Borg, 895 F.2d 520, 525-26 (9th Cir. 1990) (under pre-AEDPA
version of § 2254(d), giving deference to “trial court’s implied factual
determination” that juror was not actually biased and to state appellate court’s
finding that the record supported that determination). Juror No. 5 and Juror No. 1
characterized the relevant statement differently than Juror No. 12 did and averred
that it was an off-hand statement made “in passing” and without the intent of
influencing the other jurors to change their vote, while Juror No. 4 did not hear the
statement. Additionally, Juror No. 5’s past service on juries that had reached
guilty, not guilty, and hung verdicts indicated that she was impartial and had not
pre-judged Murray’s guilt.
Because Murray cannot overcome the CCA’s determination that Juror No. 5
was not actually biased, he cannot show that she committed misconduct by
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concealing her bias during voir dire. Cf. Estrada, 512 F.3d at 1240 (to establish
actual bias, defendant must show that juror “failed to answer honestly a material
question on voir dire” (internal quotation marks and citation omitted)). Murray
also fails to identify any clearly established federal law rendering Juror No. 5’s
statement during deliberations misconduct. Even if the statement amounted to
misconduct, it was not prejudicial to Murray because it did not have a “substantial
and injurious effect or influence in determining the jury’s verdict,” which was
supported by overwhelming evidence. Fields, 503 F.3d at 781; see also Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (harmless error standard).
Therefore, the CCA’s determination that Juror No. 5 was not actually biased
and did not commit prejudicial misconduct was not an unreasonable determination
of the facts, nor was it contrary to or an unreasonable application of clearly
established law, and the district court’s denial of the petition on this ground is
affirmed.
Second, with respect to Jurors Nos. 1, 4, and 7, Murray fails to show that the
CCA’s determination that these jurors were not biased against him and did not
commit prejudicial misconduct was an unreasonable determination of the facts or
contrary to clearly established federal law. It was reasonable for the CCA to
determine, based on the trial court’s credibility determinations, that the jurors’
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failures to answer questions during voir dire were honest mistakes that did not
show any bias towards Murray. See Fields, 503 F.3d at 767. Additionally, even if
the jurors had answered the questions correctly, those answers would not have
provided the basis for a valid for-cause challenge. Cf. Estrada, 512 F.3d at 1240(defendant must show that 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” (internal quotation marks and citation
omitted)); see also McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548,
556 (1984) (plurality) (“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.”).
Furthermore, to the extent that Murray raises this issue, no implied bias can
be attributed to the jurors. Their personal experiences were not sufficiently similar
to the experiences of Murray’s victims to make this one of “those extreme
situations where the relationship between a prospective juror and some aspect of
the litigation is such that it is highly unlikely that the average person could remain
impartial in his deliberations under the circumstances.” Fields, 503 F.3d at 769(internal quotation marks and citation omitted). Nor was the jurors’ conduct of the
kind from which this court has presumed bias. Cf. Dyer v. Calderon, 151 F.3d
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970, 983-84 (9th Cir. 1998) (juror “lie[d] materially and repeatedly in response to
legitimate inquiries about her background,” thereby “introduc[ing] destructive
uncertainties into the process” and making it “that rare case where we must
presume juror bias”).
Lastly, the jurors’ statements during deliberations do not constitute
misconduct, because jurors are permitted to use their personal experiences during
deliberations, particularly to evaluate credibility. Grotemeyer v. Hickman, 393
F.3d 871, 879 (9th Cir. 2004) (“The Sixth Amendment entitles a defendant to an
‘impartial’ jury, not an ignorant one.”).
Even if these statements were deemed to be misconduct in the form of
extrinsic evidence, they were not prejudicial, particularly because there was
overwhelming evidence against Murray and because the jury failed to convict on
six of the charges against Murray, showing that they were not unduly influenced in
reaching their verdict. See United States v. Montes, 628 F.3d 1183, 1189 (9th Cir.
2011) (finding no reversible prejudice when extrinsic information was introduced
to jury, in part because “[o]verwhelming evidence of [the defendants’] guilt was
introduced at trial”); United States v. de Cruz, 82 F.3d 856, 861 (9th Cir. 1996)
(holding that no actual prejudice resulted from denial of motion to continue trial
because there was no showing that jury “judged [the defendant] on anything but
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the evidence presented” and jury’s acquittal on one of the three charges “further
indicat[ed] a lack of prejudice toward defendant” (citation omitted)).
Accordingly, the CCA’s determination that Jurors Nos. 1, 4, and 7 did not
engage in misconduct that resulted in prejudice to Murray was a reasonable
determination of the facts and was not contrary to or an unreasonable application
of clearly established federal law. The district court was correct in denying
Murray’s petition.
AFFIRMED.
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