FILED
NOT FOR PUBLICATION DEC 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
JASON J. PAYNE, No. 10-16813
Petitioner - Appellant, D.C. No. 3:07-cv-04712-JSW
v.
MEMORANDUM *
JOE MCGRATH, Warden,
Respondent - Appellee.
TORIANO YOUNG, No. 10-16820
Petitioner - Appellant, D.C. No. 3:07-cv-03905-JSW
v.
JOE MCGRATH,
Respondent - Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted November 15, 2011
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: THOMAS, GOULD, and BYBEE, Circuit Judges.
California state prisoners Jason Payne and Toriano Young ('petitioners')
appeal the district court's denial of their 28 U.S.C. y 2254 habeas corpus petitions.
We affirm. Because the parties are familiar with the factual and legal history of
this case, we need not recount it in detail here.
This case has a number of disturbing aspects. The jurors and the prosecution
team lunched and dranµ alcohol together following the verdict. At the lunch, one
of the jurors commenced a romantic relationship with the lead detective, who was a
µey prosecution witness. The trial judge ordered the prosecutor, who was a
percipient witness, to submit an affidavit disclosing how he came to µnow of the
relationship. But the prosecutor failed to do so until four years had passed and the
trial judge had lost jurisdiction of the case. When confronted with the allegation of
potential juror bias, the trial judge prohibited defense counsel from contacting the
jurors, although the jurors had obviously been in close post-trial contact with the
prosecution team.
However, the propriety of the post-trial activities is not relevant to our
inquiry. The narrow question before us on federal habeas review is actual juror
bias and, more specifically, whether the California Court of Appeal's decision
denying relief was 'contrary to, or involved an unreasonable application of, clearly
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established Federal law, as determined by the Supreme Court.' Mitchell v.
Esparza, 540 U.S. 12, 15 (2003) (quoting 28 U.S.C. y 2254(d)(1)). There is no
suggestion that the petitioners were otherwise denied a fair and constitutionally
adequate trial.
The Supreme Court has 'long held that the remedy for allegations of juror
partiality is a hearing in which the defendant has the opportunity to prove actual
bias.' Smith v. Phillips, 455 U.S. 209, 215 (1982). The Court, however, has never
defined the scope of such hearings or detailed all of the contexts in which they are
required. In construing Supreme Court guidance, we have endorsed 'a flexible
approach when determining what steps to taµe in response to alleged juror bias.'
Tracey v. Palmateer, 341 F.3d 1037, 1043 n.4 (9th Cir. 2003).
In this case, shortly after learning of the post-verdict social relationship
between the state's detective and one of the jurors, the trial court judge investigated
the possibility of juror bias by holding a hearing to question both the detective and
the juror about their relationship. The judge permitted the petitioners to attend the
hearing and defense counsel to participate in the examination. Although nothing in
this hearing revealed any evidence of pre-verdict contact between the juror and the
detective, the trial court continued to consider the possibility of juror bias in
several more hearings with the prosecutor and defense counsel. No evidence of
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any pre-trial contact between the juror and the detective was produced at any of
these proceedings. By conducting these hearings, the trial court satisfied its duty
'to prevent prejudicial occurrences and to determine the effect of such occurrences
when they happen.' Smith, 455 U.S. at 217. The state trial judge concluded that
the juror was truthful in stating that the relationship had not commenced prior to
the verdict. Perhaps the trial judge could have conducted a more thorough
examination, and the judge's decision to limit the defense inquiry is questionable.
However, taµing due consideration of all of the circumstances, the California Court
of Appeal's conclusion that the trial court's investigation did not deny petitioners
due process was not contrary to, or an unreasonable application of, clearly
established Supreme Court authority.
Petitioners also contend that the trial court's investigation was
constitutionally inadequate because it did not inquire into the possibility of implied
bias. It is true that in certain 'extraordinary cases, courts may presume bias based
on the circumstances.' Dyer v. Calderon, 151 F.3d 970, 981 (9th Cir. 1998); see
also Smith, 455 U.S. at 222 (O'Connor, J., concurring). Bias is to be assumed
'where the relationship between a . . . juror and some aspect of the litigation is
such that it is highly unliµely that the average person could remain impartial in his
deliberations under the circumstances.' United States v. Gonzalez, 214 F.3d 1109,
-4-
1112 (9th Cir. 2000) (quoting Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990))
(internal quotation marµs omitted).
None of the situations that have been identified as indicating possible
implied bias are reflected here. See Smith, 455 U.S. at 222 (O'Connor, J.,
concurring) (giving examples of situations where bias might be presumed);
Coughlin v. Tailhooµ Ass'n, 112 F.3d 1052, 1062 (9th Cir. 1997) (describing four
situations where juror bias might be implied). Even considering that the presence
of implied bias may not be limited to these situations, it cannot be said that this
'case present[s] a relationship in which the potential for substantial emotional
involvement, adversely affecting impartiality, is inherent.' United States v.
Gonzalez, 214 F.3d at 1112 (quoting United States v. Plache, 913 F.2d 1375, 1378
(9th Cir. 1990)) (internal quotation marµs omitted).
The state court found that the relationship commenced after the verdict.
Considering this lacµ of pre-trial contact, it cannot be said that the trial court's
failure to imply bias or investigate implied bias was contrary to, or an unreasonable
application of, Supreme Court precedent. Petitioners suggest that if the juror had
formed an attraction for the lead detective during trial, we should conclude that the
juror was impliedly biased. However, there is no support in Supreme Court
-5-
jurisprudence for such a holding, and there is no factual basis in the record to
support a finding of implied bias.
The petitioners received a fair trial, and there is no basis in the record for
concluding that actual or implied juror bias warranted a new trial. Given all these
considerations, the district court was correct in denying federal habeas relief.
AFFIRMED.
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FILED
Payne v. McGrath, 10-16813, and Young v. McGrath, 10-16820 DEC 07 2011
MOLLY C. DWYER, CLERK
GOULD, Circuit Judge, Concurring: U.S . CO U RT OF AP PE A LS
I concur but add these views: The salient fact is that after conviction through
trial by jury, the state trial court learned that the government's lead witness
detective and an involved juror had developed a personal dating relationship after
the trial concluded. It would have been a superior state court proceeding, and
consistent with the traditional values we give to advocacy, if the trial judge had
permitted counsel's inquiry to all jurors if any were aware of a relationship
between the government's lead witness detective and the involved juror
commencing before the verdict was rendered and the jury dismissed. In my view
the only pertinent issue concerned timing. If the relationship developed during
trial, then I would conclude that habeas corpus relief would be warranted because
of implied bias, but if it started after trial, it would not have affected the verdict.
Notwithstanding, I agree that no United States Supreme Court decision has
precisely defined the scope of a proceeding to be undertaµen by a state court to
assess possible juror bias. Because the state appellate court found no abuse of
discretion in how the trial court handled the potential juror bias matter, with the
state court judge holding a purposeful hearing, inquiring of the detective and the
juror, and having each of them answer under oath that the relationship started after
trial, and because the deferential Anti-terrorism and Effective Death Penalty Act
would only permit relief upon determination that the state court made a ruling
contrary to, or an objectively unreasonable application of, a precedent of the
United States Supreme Court, 28 U.S.C. y 2254(d)(1), I agree that we cannot give
habeas corpus relief to state prisoners Payne and Young, and must affirm the
district court.