Estrada v. Scribner

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JULIO SALAZAR ESTRADA,  No. 06-55013
Petitioner-Appellant,
v.  D.C. No.
CV-03-02571-BTM
A.K. SCRIBNER, Warden,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of California
Barry Ted Moskowitz, District Judge, Presiding

Argued and Submitted
August 7, 2007—Pasadena, California

Filed January 23, 2008

Before: Alex Kozinski, Chief Judge, Johnnie B. Rawlinson,
Circuit Judge, and Harold Baer, Jr.,* Senior District Judge.

Opinion by Judge Baer

*The Honorable Harold Baer, Jr., Senior United States District Judge
for the Southern District of New York, sitting by designation.

1037
1040 ESTRADA v. SCRIBNER

COUNSEL

Kurt David Hermansen, Law Office of Kurt David Herman-
sen, San Diego, California, for the petitioner-appellant.

Bill Lockyer, Mary Jo Graves, Gary Schons, Matthew Mul-
ford, Elizabeth Hartwig, Office of Attorney General of the
State of California, San Diego, California, for the respondent-
appellee.

OPINION

BAER, Senior District Judge:

Petitioner-Appellant Julio Salazar Estrada (“Petitioner” or
“Estrada”) appeals the district court’s denial of his 28 U.S.C.
§ 2254 habeas petition for a new trial after his conviction in
California state court for second-degree murder, see Cal. Pen.
Code § 187, as well as taking a vehicle without the owner’s
consent, see Cal. Veh. Code § 10851(A). Estrada claims that
his rights to due process and a fair and impartial jury under
 ESTRADA v. SCRIBNER 1041
the Sixth and Fourteenth Amendments were violated because
juror misconduct resulted in the consideration of impermissi-
ble extraneous information by the jury, and because two
jurors were impermissibly biased.1

We affirm the district court’s denial of Estrada’s petition.

I. BACKGROUND

A. Underlying Facts of Crime

On July 16, 1997, Dennis Morgan was found stabbed to
death in the driveway of his parents’ home in El Centro, CA.
Petitioner Julio Estrada testified that he was hitchhiking in
Calexico when Morgan offered him a ride in his car. Accord-
ing to Estrada, Morgan offered that if Estrada would return to
Morgan’s house that night, Morgan would help Estrada get a
bus ticket to San Bernardino the next day. Estrada went to
Morgan’s house, where Morgan sought to have sex with
Estrada.

According to Estrada, he attempted to leave, but Morgan
blocked the door. Estrada grabbed a knife from the kitchen.
Morgan blocked his path and tried to grab the knife away.
Estrada swung at Morgan and then, according to Estrada,
Morgan “impaled himself” on the knife. Estrada left the apart-
ment, drove away in Morgan’s car and was later stopped by
1
Estrada also seeks to brief three issues that the district court considered
and rejected without issuing a certificate of appealability — namely, that
1) Estrada was deprived of a constitutional jury selection procedure, 2) the
trial court erroneously allowed evidence of Estrada’s prior robbery convic-
tion, and 3) the trial court erroneously excluded evidence of the decedent’s
past conduct. Estrada subsequently raised these uncertified issues in his
opening brief and thus, pursuant to 9th Cir. R. 22-1(e), brought a motion
to expand the district court’s certificate of appealability.
We decline to expand the district court’s certificate of appealability to
include these three issues, nor do we request a response from Respondent
pursuant to 9th Cir. R. 22-1(f).
1042 ESTRADA v. SCRIBNER
Border Patrol agents. Morgan’s autopsy showed that he bled
to death.

B. Trial

On October 28, 1997, the district attorney filed an amended
complaint charging Estrada with murder, see Cal. Pen. Code
§ 187; taking a vehicle without the owner’s consent, see Cal.
Veh. Code § 10851(A); and receiving stolen property, see
Cal. Pen. Code § 496(A). After a trial by jury, Estrada was
convicted of murder in the second degree and of taking a
vehicle without the owner’s consent. The jury acquitted
Estrada of first degree felony murder and receiving stolen
property. On October 24, 2000, the trial court sentenced
Estrada to 19 years to life in prison.

C. Alleged Juror Misconduct and Bias

After the verdict, Estrada moved for a new trial and submit-
ted several declarations by various jurors to support his claims
of misconduct. Juror No. 1 stated that other jurors summarily
dismissed his arguments for manslaughter, told him that he
lacked understanding of the case, told him that a mistrial was
not an option, and pressured him into voting for second
degree murder although he did not believe Estrada was guilty
of that crime. Juror No. 1 also stated that he was on probation
and was afraid that if he were the cause of a mistrial, it might
affect his probation status.2 Finally, Juror No. 1 reported that
2
Juror No. 1 reiterated this belief twice in his handwritten declaration,
saying at one point, “I did not want to do something wrong and be the only
one holding out. So, I change[d] my verdict. I felt that if I allowed a mis-
trial I was doing something wrong. I am currently on probation and I felt
that it might affect my probation,” and at another, “I felt pressured to
change my vote and further felt that if I did not do this, that I would be
doing something wrong that could have caused problems with my proba-
tion.”
The entirety of the record below is inconclusive as to whether Juror No.
1 was, in actuality, a probationer.
 ESTRADA v. SCRIBNER 1043
during deliberations, jurors discussed imposing a lengthy sen-
tence on Estrada to prevent him from committing another crime.3

Juror No. 7 stated in her declaration that she did not have
enough time to study the jury instructions, and that although
she, too, believed Estrada should have been found guilty of
manslaughter, she felt pressured to vote for second degree
murder in order to prevent a mistrial and Estrada’s early
3
Juror No. 1 related the following regarding the timing of these discus-
sions regarding the need for a lengthy sentence:
“When we first started our deliberations, there was a vote taken
and it was eleven for guilty in the second degree and myself
guilty for manslaughter. This vote was taken approximately 3:00
or 4:00 P.M. on Friday, August 4th. . . .
On Monday, August 7th, the discussion pertained to first degree,
second degree, and also about the timing of robbery. Ten (10)
jurors change [sic] their vote to first degree[,] one remain[e]d at
2nd degree[,] and I change [sic] my vote to 2nd degree.
There were discussions that if Mr. Estrada was not given a long
sentence, he would get out soon and do this again, referring to the
murder. . . .
On several occasion [sic] I raised the issue of manslaughter and
that the killing was the result of a fight and that Mr. Estrada did
not have the intent to kill Mr. Morgan. Again, I was put off and
told that they were discussing first degree and that also I did not
understand or heard things wrong.
On Tuesday, August 8th . . . I discussed that there had been no
intent . . . and that there may have to be a mistrial. The foreman
and other jurors told me there could not be a mistrial because it
would take more time.
On the same day . . . we submitted to the Judge a request con-
cerning some clarification as to the timing of the robbery in rela-
tion to the homicide. The Judge clarified this timing, if the
robbery occurred after the mortal wound then it could not be a
felony murder . . . .
It was then proposed that the people who wanted first degree
would agree to second degree and that I would give second
degree instead of manslaughter and then a verdict of second
degree could be given to avoid a mistrial.”
1044 ESTRADA v. SCRIBNER
release from custody.4 Juror No. 7 also claimed that Juror No.
8 was obviously influenced to find Estrada guilty of murder
because he knew a parolee who was released from prison and
thereafter killed someone with a hammer.5 Juror No. 7
declared that Juror No. 8 said that if Estrada were not given
a lengthy sentence, he would repeat his offense.

In a supplemental declaration, Juror No. 7 also revealed
that contrary to the court’s orders, Juror No. 8 engaged in dis-
4
“I also feel Mr. Estrada should have been convicted of Voluntary Man-
slaughter because there was no proof that Mr. Estrada intended to murder
Mr. Morgan. . . .
I tried to read the jury instructions, but I felt pressured from the
other members of the jury to hurry up and cast a vote. I wanted
to spend more time working on trying to understand better the
intent issue and how it had to be proven or unproven and just
how exactly it related to the particular facts [of] this case.
Because of the pressure of getting this matter over with, and fur-
ther because of the pressure that the other jurors did not want a
mistrial, I consented to Second Degree Murder.
It was discussed by some that if there was a mistrial, that Mr.
Estrada would be let free. . . .”
5
“During the deliberations one juror . . . disclosed that he was in a foster
home, and that this foster home allowed prisoners who were released from
prison to stay in the home. One of these released prisoner[s] who stayed
at this home ended up killing someone with a hammer. Juror [No. 8] felt
that Estrada, if not given a long sentence would repeat the same offense.
This is the same juror who initiated discussion of a penalty phase which
was carried on by other jurors for a period of time. Some jurors did object
to discussion of the penalty phase, but a number of them did participate
in it.
Juror [No. 8] became quite emotional about this incident of the
hammer slaying. His demeanor was such that you could see that
this incident of a person getting out of prison and then killing
somebody was very fresh in his mind and very vivid in the way
he expressed it, even though it occurred many years ago. It was
also very clear that this incident that occurred in his prior life sig-
nificantly influenced his decision on this case . . . .”
Juror No. 7 referred to Juror No. 8 as “Juror K” in her declaration.
 ESTRADA v. SCRIBNER 1045
cussions about the case with other jurors before the matter
was formally submitted to the jury.

Estrada’s counsel prepared a declaration for Juror No. 12
that she ultimately never signed. The declaration attributed to
Juror No. 12 states that Juror No. 8 was unduly influenced by
the murder of his own mother, and that Juror No. 8 wanted
Estrada to be imprisoned for a lengthy term.6 According to the
declaration submitted by Estrada’s defense investigator Rob-
ert Weeks, Juror No. 12 refused to sign the prepared declara-
tion, not because the statements therein were incorrect, but
because Juror No. 12 feared repercussions from the victim’s
family if they found out she revealed deliberation irregulari-
ties and the verdict was invalidated.

Estrada intended to call Juror No. 12 as a witness at the
state court’s hearing on his motion for a new trial. Estrada
contended that Juror No. 12’s testimony would confirm that
Juror No. 1 was treated disrespectfully by the other jurors, and
that the murder of Juror No. 8’s mother unduly influenced
Juror No. 8 to vote for murder. Estrada argued that Juror No.
12’s testimony would prove that Juror No. 8 was not truthful
on voir dire when Juror No. 8 said his mother’s murder would
not affect his ability to be fair. Estrada further contended that
Juror No. 12 was not forthcoming on voir dire about her con-
nection with the Morgan family and how this might impact
her ability to be fair.

In response, the prosecutor offered a second declaration
from Juror No. 1, this one stating that the pressure he felt was
6
“There was one juror . . . who indicated during the selection of the
jurors that his mother had been murdered and that he could put that aside.
. . . During the deliberation it was very apparent that Juror [No. 8] could
not put his mother’s murder aside. In fact, he brought up with vivid emo-
tions what happened to his mother. He did not want Mr. Estrada to be
released, and this is when the discussion was brought up of imposing a
long term so that Mr. Estrada could do this again. Juror [No. 8] was very
adamant . . .”
1046 ESTRADA v. SCRIBNER
self-imposed, he was not pressured by other jurors to reject a
finding of manslaughter, and he was convinced after further
consideration that Estrada was guilty of second degree mur-
der. The prosecutor also submitted her own declaration stating
that if Juror No. 8 were called to testify, he would deny that
he discussed the case before it was submitted to the jury, that
he knew of any parolee who killed someone with a hammer
after being released from prison, or that his mother’s murder
influenced him to find Estrada guilty of second degree mur-
der.

The trial court concluded that all the declarations submitted
by the defense and Juror No. 12’s proposed testimony consti-
tuted inadmissible evidence of the jurors’ mental processes in
reaching a verdict. The court denied Estrada’s request to call
Juror No. 12 as a witness and Estrada’s motion for a new trial.

D. Procedural History

The state appellate court denied Estrada’s appeal on Octo-
ber 17, 2002. See People v. Estrada, No. D036756, 2002 Cal.
App. Unpub. LEXIS 9616 (Cal. Ct. App. Oct. 17, 2002)
(unpublished). It held, inter alia, that most of the statements
in Estrada’s proffered declarations and Juror No. 1’s belief
that his probation status would be affected in the event of a
mistrial, were inadmissible evidence of the mental processes
used by the jury in reaching their verdict. See id. at *12-13,
*15-16. The state appellate court did hold that the trial court
erred when it failed to admit statements regarding the discus-
sion of sentencing during deliberations, as well as Juror No.
8’s discussion of a homicide with a hammer. See id. at *16-
17. However, it held that there was no “substantial likelihood”
that the improper discussions influenced the jury, or that one
or more jurors were “actually biased” against Estrada. Id. at
*18-21. The Supreme Court of California subsequently denied
Estrada’s petition for review.

Petitioner filed his § 2254 habeas petition pro se on
December 23, 2003. The Magistrate agreed with the reasoning
 ESTRADA v. SCRIBNER 1047
of the state appellate court regarding the portions of the decla-
rations that could, and could not, be considered, and generally
found the state court’s reasoning “not unreasonable.” The dis-
trict court, on December 29, 2004, adopted the findings and
conclusions of the Magistrate and denied all of Estrada’s
claims, but granted a certificate of appealability as to Estra-
da’s claims for juror misconduct and juror bias.

On January 12, 2005, Petitioner, while in prison, filed a pro
se motion in the district court for appointment of counsel at
public expense. See 28 U.S.C. § 2254(h). Petitioner listed the
caption of the case and stated that the district court denied his
petition for habeas corpus on December 29, 2004, but issued
a certificate of appealability as to Claim 1. Petitioner stated
further that “petitioner . . . is a Mexican National whose read-
ing skills in English are very limited,” and noted that because
of the imminent transfer of his “next friend” legal aide in
prison, “petitioner would be left to proceed alone from here-
on.” Petitioner prayed that the Court “appoint counsel, and
any other actions this Court finds necessary or appropriate.”
Petitioner filed a formal notice of appeal on December 18,
2005. Appellate counsel was appointed on June 1, 2006.

II. STANDARDS OF REVIEW

This Court reviews de novo a district court’s denial of a
petition for habeas corpus. See Hasan v. Galaza, 254 F.3d
1150, 1153 (9th Cir. 2001). The state court’s factual findings
are entitled to a presumption of correctness unless the peti-
tioner rebuts the presumption with clear and convincing evi-
dence. See Solis v. Garcia, 219 F.3d 922, 926 (9th Cir. 2000)
(citing, e.g., 28 U.S.C. § 2254(e)(1)). Findings of fact by the
district court are reviewed for clear error. Mancuso v. Oli-
varez, 292 F.3d 939, 948-49 (9th Cir. 2002).

Petitioner will prevail in appealing the district court’s
denial of habeas if the state court’s decision upholding his
conviction either 1) “resulted in a decision that was contrary
1048 ESTRADA v. SCRIBNER
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court,” 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.” See 28 U.S.C. § 2254(d)(1),
(d)(2).

On collateral review, trial errors — such as extraneous
information that was considered by the jury — are generally
subject to a “harmless error” analysis, namely, whether the
error had “substantial and injurious” effect or influence in
determining the jury’s verdict. Jeffries v. Wood, 114 F.3d
1484, 1491 (9th Cir. 1997) (citing Brecht v. Abrahamson, 507
U.S. 619, 638 (1993)); see also Sassounian v. Roe, 230 F.3d
1097, 1108 (9th Cir. 2000). However, the presence of a biased
juror is a structural error, not subject to the harmless error
analysis, and if one is found the defendant is entitled to a new
trial. See, e.g., Dyer v. Calderon, 151 F.3d 970, 973 n.2 (9th
Cir. 1998) (en banc).

The decision by a district court to grant or deny an eviden-
tiary hearing is reviewed for abuse of discretion. See, e.g.,
United States v. Saya, 247 F.3d 929, 935 (9th Cir. 2001); see
also Schriro v. Landrigan, 127 S. Ct. 1933, 1939 (2007). On
collateral review of a state court conviction, “a federal court
must consider whether such a[n] [evidentiary] hearing could
enable an applicant to prove the petition’s factual allegations,
which, if true, would entitle the applicant to federal habeas
relief.” Schriro v. Landrigan, 127 S. Ct. at 1940. Additionally,
in considering whether the applicant would be entitled to fed-
eral habeas relief, a federal court must take into account the
deferential standards of 28 U.S.C. § 2254. See id.7
7
It should be noted that 28 U.S.C. § 2254 (e)(2) generally prohibits fed-
eral habeas courts from granting evidentiary hearings when applicants
have failed to develop the factual bases for their claims in state courts.
That provision, however, is not applicable here, as petitioner properly
sought, and was denied, an evidentiary hearing in both state and federal
court. See, e.g., Earp v. Ornoski, 431 F.3d 1158, 1169 (9th Cir. 2005).
 ESTRADA v. SCRIBNER 1049
III. DISCUSSION

A. Adequacy of Notice of Appeal

[1] A notice of appeal must be filed in the district court
within 30 days of judgment.8 Fed. R. App. P. 4(a). Here, the
pro se prisoner Petitioner did not timely file a notice of
appeal, but did timely file, within the prescribed 30 days, a
motion for appointment of appellate counsel. The salient
question is whether Petitioner’s motion for appellate counsel
satisfies the requirements for a notice of appeal set forth by
Fed. R. App. P. 3(c).

Rule 3(c) requires a notice of appeal to specify (1) the party
taking the appeal, (2) the order from which the appeal is
taken, and (3) the court to which the appeal is taken. The pur-
pose of Rule 3(c) is to ensure that the opposing party is given
notice of the petitioning party’s intent to appeal. Buffalo v.
Sunn, 854 F.2d 1158, 1161 (9th Cir. 1988). Rule 3(c)(4) fur-
ther states that “[a]n appeal must not be dismissed for infor-
mality of form or title of the notice of appeal, or for failure
to name a party whose intent to appeal is otherwise clear from
the notice.” See also Smith v. Barry, 502 U.S. 244, 248-49
(1992) (“If a document filed within the time specified by Rule
4 gives the notice required by Rule 3, it is effective as a notice
of appeal.”). Additionally, we construe Estrada’s motion lib-
erally, as he is pro se. See Estelle v. Gamble, 429 U.S. 97, 106
(1976); Biwot v. Gonzales, 403 F.3d 1094, 1097-98 (9th Cir.
2005) (citing Barron v. Ashcroft, 358 F.3d 674, 676 n.4 (9th
Cir. 2004)).

[2] Here, Estrada’s motion identified the party seeking to
take the appeal (i.e. himself), referenced the judgment which
8
“In a civil case, except as provided in Rules 4(a)(1)(B), 4(a)(4), and
4(c), the notice of appeal required by Rule 3 must be filed with the district
clerk within 30 days after the judgment or order appealed from is entered.”
Fed. R. App. P. 4(a).
1050 ESTRADA v. SCRIBNER
he sought to appeal and the district court’s issuance of a cer-
tificate of appealability, and sought appellate counsel. Such
averments, particularly considering Petitioner’s pro se status,
are sufficient to put the government on notice of petitioner’s
intent to appeal. See United States v. Ward, 696 F.2d 1315,
1317 (11th Cir. 1983) (pro se petitioner’s letter expressing an
intent to appeal and requesting appointment of an attorney
satisfies Fed. R. App. P. 3(c)). Further, Petitioner’s failure to
specify the “Ninth Circuit Court of Appeals” in his motion
does not bar his appeal here. See Grune v. Coughlin, 913 F.2d
41, 43 (2d Cir. 1990) (“[T]he mere failure to identify that the
appeal would be taken to this Court does not nullify the notice
when it is clear that this is the Court to which the appeal
would be directed”). We accordingly have jurisdiction to hear
Estrada’s appeal.9

B. Admissibility of Evidence

[3] As a threshold matter, we must consider whether the
district court was correct when it determined that, like the
state court, it could not consider certain portions of the jurors’
affidavits proffered by Estrada. See Sassounian, 230 F.3d at
1108.

Federal Rule of Evidence 606(b) provides that:

“[A] juror may not testify as to any matter or
statement occurring during the course of the jury’s
deliberations or to the effect of anything upon that or
any other juror’s mind or emotions as influencing the
juror to assent to or dissent from the verdict or
9
Because Petitioner’s motion for appellate counsel was filed within 30
days, and the issues here concern the form of Petitioner’s motion, not the
timing, Petitioner’s appeal is not barred by Bowles v. Russell, 127 S. Ct.
at 2360, 2363 (2007) (appeal of denial of habeas petition that was filed
at district court’s direction two days after expiration of time limit was
barred by “mandatory and jurisdictional” time limits of Fed. R. App. P. 4).
 ESTRADA v. SCRIBNER 1051
indictment or concerning the juror’s mental pro-
cesses in connection therewith. But a juror may tes-
tify about (1) whether extraneous prejudicial
information was improperly brought to the jury’s
attention, [or] (2) whether any outside influence was
improperly brought to bear upon any juror. . . . A
juror’s affidavit or evidence of any statement by the
juror may not be received on a matter about which
the juror would be precluded from testifying.”

Fed. R. Evid. 606(b).

A long line of precedent distinguishes juror testimony
about the consideration of extrinsic evidence, which we may
consider, from juror testimony about the subjective effect of
evidence on any of the particular jurors here, which we may
not consider. Although “having to ignore the most direct evi-
dence of prejudice — [i.e., the jurors’] testimony that she
relied on the extrinsic information — lends an ‘Alice in Won-
derland’ quality to the discussion . . . the weight of authority
and sound policy reasons support this view.” See Sassounian,
230 F.3d at 1109 (citing McDonald v. Pless, 238 U.S. 264,
267-68 (1915) (noting that finality of verdicts supports the
rule)).

[4] Regarding the portions of the declarations of Jurors
Nos. 1 and 7, and the unsigned affidavit of Juror No. 12, that
alleged that Jurors No. 1 and 7 felt pressured to vote for
second-degree murder and were treated disrespectfully by
other jurors, the state courts correctly concluded that such evi-
dence was inadmissible as the subjective “mental processes”
of Jurors No. 1 and 7.10 The district court adopted that view
10
Cal. Evid. Code § 1150(a) is substantively similar to Fed. R. Evid.
606(b). Cal. Evid. Code § 1150(a) provides that: “Upon an inquiry as to
the validity of a verdict, any otherwise admissible evidence may be
received as to statements made, or conduct, conditions, or events occur-
ring, either within or without the jury room, of such a character as is likely
1052 ESTRADA v. SCRIBNER
as well. Such a ruling is consonant with Fed. R. Evid. 606(b),
and thus not contrary to, or an unreasonable application of,
clearly established Supreme Court law. See Tanner v. United
States, 483 U.S. 107, 120-22 (1987).

[5] Regarding the portion of Juror No. 1’s declaration that
set forth his mistaken belief that his probation status would be
adversely affected by a mistrial, the state courts similarly con-
cluded that these statements were inadmissible evidence of
Juror No. 1’s “subjective reasoning process,” rather than
extrinsic evidence of extraneous information injected into delib-
erations.11 The district court agreed. Indeed, there is no indica-
tion from any of the affidavits that Juror No. 1 articulated this
belief to the jury and thus injected it into the deliberations.
The district court’s ruling is consonant with Fed. R. Evid.
606(b), and thus not contrary to, or an unreasonable applica-
tion of, clearly established Supreme Court law.

[6] Regarding the portions of the affidavits detailing the
improper discussions of sentencing, as well as Juror No. 8’s
introduction of a prior murder into the discussions to support
a longer sentence, the state appellate court determined that
those portions were admissible. The district court agreed, as
such evidence was “extrinsic evidence.” That determination
was correct, and we may consider such evidence in reviewing
Estrada’s claims. Additionally, we may consider the portions
of the declarations discussing Juror No. 8’s introduction of his

to have influenced the verdict improperly. No evidence is admissible to
show the effect of such statement, conduct, condition, or event upon a
juror either in influencing him to assent to or dissent from the verdict or
concerning the mental processes by which it was determined.” See gener-
ally In re Hamilton, 20 Cal. 4th 273, 294 (1999).
11
The portions of the affidavits relating evidence of the jurors’ compro-
mise, as well as the belief that Estrada might be released in the event of
a mistrial, were similarly excluded by the trial court, with that determina-
tion upheld by the state appellate court and district court. Those portions
are similarly barred by Fed. R. Evid. 606(b).
 ESTRADA v. SCRIBNER 1053
mother’s murder into sentencing discussions. The district
court and state courts erred in finding this inadmissible,
because Juror No. 8’s mother’s murder accordingly became
“extrinsic evidence” considered by the jury, and evidence of
the murder is admissible. Cf. Jefferies, 114 F.3d at 1491
(focus is on the nature of information, rather than whether the
source of information was from another juror or from outside
sources) (citing, e.g., Turner v. Louisiana, 379 U.S. 466, 472-
73 (1965)). The state court’s decision was therefore “contrary
to” established Supreme Court precedent on this point.

C. Introduction of Extraneous Information Into
Sentencing Discussions

The Sixth Amendment guarantee of a trial by jury requires
the jury verdict to be based on the evidence produced at trial.
Jeffries, 114 F.3d at 1490 (citing Turner v. Louisiana, 379
U.S. 466, 472-73 (1965)). “A juror’s communication of
extrinsic facts implicates the Confrontation Clause.” Sas-
sounian, 230 F.3d at 1108 (citing Jeffries, 114 F.3d at 1490).
“The juror in effect becomes an unsworn witness, not subject
to confrontation or cross examination.” Id. (citing Jeffries,
114 F.3d at 1490). That the unsworn testimony comes from
a juror does not diminish the scope of a defendant’s rights
under the Sixth Amendment. Jeffries, 114 F.3d at 1490 (citing
Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995)).

Juror misconduct is subject to “harmless error” analysis.
Sassounian, 230 F.3d at 1108. We look to the following fac-
tors to determine whether a defendant has suffered prejudice
from juror misconduct:

(1) whether the material was actually received, and
if so, how;

(2) the length of time it was available to the jury;

(3) the extent to which the juror discussed and con-
sidered it;
1054 ESTRADA v. SCRIBNER
(4) whether the material was introduced before a ver-
dict was reached, and if so at what point in the delib-
erations; and

(5) any other matters which may bear on the issue of
the reasonable possibility of whether the extrinsic
material affected the verdict.

Id. at 1109.

[7] The state appellate court held that the jurors’ discussion
of sentencing, as well as the discussion of an unrelated mur-
der within that context, was improper jury misconduct. Still,
the state appellate court found that there was no “substantial
likelihood” that the improper discussion of sentencing influ-
enced the jury. Foremost in its analysis was its finding that
these facts occurred in this sequence: 1) a vote of 11 jurors for
second-degree murder and one for manslaughter; 2) a vote of
10 jurors for first degree murder, and two for second degree
murder; 3) the discussion of the extraneous information
regarding the need for a longer sentence; and 4) the jury’s
ultimate verdict of second-degree murder. As the jury ulti-
mately found the lesser charge of second degree murder, the
state appellate court reasoned that the extraneous information
did not result in a longer sentence for defendant (as indeed,
the jury found Estrada guilty on a lesser charge after the
improper discussions).

[8] The state appellate court therefore found that the
improper sentencing discussion happened after — rather than
before — the change of votes to first degree murder simply
because in Juror No. 1’s declaration describing the events of
Monday, August 7th, his statement that “there were discus-
sions” about sentencing occurs in the next sentence after his
statement that jurors changed their votes. An equally plausible
scenario is that Juror No. 1’s statement about the sentencing
discussions was simply intended to provide the reasons for the
change, rather than the relation of a temporally distinct event.
 ESTRADA v. SCRIBNER 1055
Under this scenario, one could reasonably infer that 1) the
jury engaged in improper sentencing discussions about the
need for a longer sentence, 2) the majority of jurors subse-
quently changed their votes from second-degree to first-
degree murder, and then, 3) the majority compromised with
the holdouts by voting for second degree murder (despite the
fact that the holdouts felt that intent was not present). Were
those facts to be true, there may well be a “substantial likeli-
hood” that the improper discussions influenced the jury.

[9] State appellate court findings, however, are normally
entitled to a presumption of correctness. See Dyer, 151 F.3d
at 979 n.11. It cannot be said that the state court’s finding of
the timing of these events was an “unreasonable” determina-
tion of the facts. 28 U.S.C. § 2254(d)(2).

[10] Even if Estrada’s version of events were true, Estra-
da’s claim would fail because the state appellate court rested
its decision to deny Estrada’s petition on alternate grounds —
most prominently, that the jury voted for second degree mur-
der shortly after a colloquy between the trial judge and jury
in which the judge charged that if the robbery followed the
murder, Estrada would not properly be subject to first-degree
murder liability under a felony-murder theory.12 The timing of
this colloquy, and the short amount of time between the collo-
quy and the verdict, supports the argument that the jury
reached its verdict for reasons unrelated to the improper sen-
tencing discussions. Cf. Sassounian, 230 F.3d at 1110-12
(calling “critical” the fact that the jury discussed improper
evidence shortly before rendering a verdict). Even if Estrada
was granted an evidentiary hearing, and if the additional evi-
dence showed that the improper discussion preceded the vote
for first degree murder, the state court’s determination that the
improper discussion did not prejudice the jury was not “con-
12
Additionally, as the district court noted, there was no indication that
the improper discussion of sentencing was lengthy, and some jurors
pointed out that the discussion was improper and objected.
1056 ESTRADA v. SCRIBNER
trary to” or an “unreasonable application of” Supreme Court
precedent in light of the other evidence rebutting a presump-
tion of prejudice. It follows that the district court did not
abuse its discretion when it declined to hold an evidentiary
hearing. “[I]f the record refutes the applicant’s factual allega-
tions or otherwise precludes habeas relief, a district court is
not required to hold an evidentiary hearing.” Schriro v.
Landrigan, 127 S. Ct. at 1940; see also United States v.
Langford, 802 F.2d 1176, 1180 (9th Cir. 1986).

D. Juror Bias

“The Sixth Amendment guarantees criminal defendants a
verdict by impartial, indifferent jurors. The bias . . . of even
a single juror would violate [Defendant’s] right to a fair trial.”
Dyer, 151 F.3d at 973 (citation omitted); see also McDonough
Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554
(1984); Smith v. Phillips, 455 U.S. 209, 217 (1982). We have
analyzed juror bias under two theories — actual bias and
implied bias. See Fields v. Woodford, 309 F.3d 1095, 1103
(9th Cir. 2002).

Actual bias is, in essence, “ ‘bias in fact’ — the existence
of a state of mind that leads to an inference that the person
will not act with entire impartiality.” United States v. Gonza-
lez, 214 F.3d 1109, 1112 (9th Cir. 2000) (citations omitted).
If a Defendant can show that a juror “failed to answer hon-
estly 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,” then Defendant is entitled to a new
trial. United States v. Henley, 238 F.3d 1111, 1121 (9th Cir.
2001). The presence of a biased juror is a structural error not
subject to harmless error analysis. Dyer, 151 F.3d at 973 n.2.
The determination of whether a juror is actually biased is a
question of fact, and thus accorded deference under 28 U.S.C.
§ 2254. See Fields v. Woodford, 309 F.3d at 1103.

[11] Here, the trial court held a hearing and found that nei-
ther Juror No. 12 nor Juror No. 8 was actually biased. The
 ESTRADA v. SCRIBNER 1057
state courts found that Juror No. 12’s discomfort at signing
her affidavit after the verdict, because of the thought of facing
the victim’s family, did not mean that she dishonestly
answered questions during voir dire when she disclosed her
relationship to the decedent’s family and represented that she
could judge the evidence fairly. Similarly, the state courts
found insufficient evidence that Juror No. 8 intentionally con-
cealed an actual bias during voir dire when he disclosed his
mother’s murder and represented that he could judge the evi-
dence fairly. We cannot say that either of those factual deter-
minations was “unreasonable.”

Additionally, in “extraordinary cases, courts may presume
bias based on the circumstances.” Dyer, 151 F.3d at 981 (cita-
tions omitted). We have indicated four instructive fact situa-
tions where juror bias might be implied. In Coughlin v.
Tailhook Ass’n, we discussed the following scenarios:

(1) where the juror is apprised of such prejudicial
information about the defendant that the court deems
it highly unlikely that he can exercise independent
judgment even if the juror states he will, (2) the exis-
tence of certain relationships between the juror and
the defendant, (3) where a juror or his close relatives
have been personally involved in a situation involv-
ing a similar fact pattern, and (4) where it is revealed
that the juror is an actual employee of the prosecut-
ing agency, that the juror is a close relative of one of
the participants in the trial or that the juror was a
witness or somehow involved in the underlying
transaction.

112 F.3d 1052, 1062 (9th Cir. 1997).

Two of the four situations could apply here. One is the
existence of certain relationships between the juror and the
defendant, as applied to Juror No. 12. The second is where a
juror or a close relative has been personally involved in a situ-
1058 ESTRADA v. SCRIBNER
ation involving a similar fact pattern, as applied to Juror No.
8. Compare Tinsley v. Borg, 895 F.2d 520, 529 (9th Cir.
1990) (declining to find implied bias in rape trial where a
juror had counseled rape victims because neither the juror nor
a close relative had been a rape victim), with United States v.
Eubanks, 591 F.2d 513, 516-17 (9th Cir. 1979) (finding
implied bias in heroin conspiracy trial where juror’s sons
were serving prison terms for heroin-related crimes). Implied
bias presents a mixed question of law and fact which is
reviewable de novo. Dyer, 151 F.3d at 979.

Still, even considering the theory of implied bias, Estrada’s
claims are unavailing. We cannot say that Juror No. 12’s rela-
tionship to the Morgan family put her in an “extreme” situa-
tion, as she was not related to any members of the victim’s
immediate family. The state appellate court’s determination
that Juror No. 12 was not impliedly biased was therefore not
“contrary to” or an “unreasonable application” of Supreme
Court law.13 See Smith, 455 U.S. at 222-23 (O’Connor, J.,
concurring). Regarding Juror No. 8, even considering that he
discussed his mother’s murder in the deliberations, we cannot
say that such evidence would render “unreasonable” or “con-
trary to law” the determination that Juror No. 8 answered his
voir dire questions honestly.14 In that regard, this case differs
from Dyer v. Calderon, 151 F.3d at 979-81, in which the juror
in question was found to have lied repeatedly to gain a seat
on the jury.
13
The Magistrate Judge noted that Juror No. 12 did not appear to be
related to any members of the victim’s immediate family.
14
Because Petitioner’s claims are unavailing in any event, it is unneces-
sary to decide, as a general matter, whether evidence of actual or implied
bias disclosed during deliberations is admissible despite the prohibition of
subjective evidence by Fed. R. Evid. 606(b). See United States v. Henley,
238 F.3d at 1121 (finding “persuasive” cases that have exempted evidence
of racial prejudice from Fed. R. Evid. 606(b), and finding that evidence
of racial bias is admissible where juror was questioned about racial bias
during voir dire, and remanding to district court to make findings, but ulti-
mately declining to decide as a general matter whether evidence of racial
bias disclosed during deliberations is admissible).
 ESTRADA v. SCRIBNER 1059
[12] Because a hearing was unlikely to change the final
result, the state court’s determination was not “contrary to” or
an “unreasonable” application of Supreme Court law. The dis-
trict court therefore did not abuse its discretion when it
declined to hold a hearing. Schriro v. Landrigan, 127 S. Ct.
at 1940.

AFFIRMED.