Harrington v. Neotti, No. 3:2011cv02016 - Document 15 (S.D. Cal. 2012)
Court Description: ORDER Denying Petitioner's Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254. Signed by Judge Marilyn L. Huff on 09/13/2012.(All non-registered users served via U.S. Mail Service)(ag)
Download PDF
<![CDATA[
Harrington v. Neotti Doc. 15 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 STEVE HARRINGTON, 12 vs. 13 14 CASE NO. 11-CV-02016-H (MDD) Petitioner, ORDER DENYING PETITIONER’S PETITION FOR WRIT OF HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2254 GEORGE NEOTTI, Warden, 15 Respondent. 16 17 On August 31, 2011, Steve Harrington (“Petitioner”), a California state prisoner 18 proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus pursuant 19 to 28 U.S.C. § 2254 challenging the constitutionality of his conviction for first degree 20 residential burglary on the grounds that jury misconduct denied Petitioner due process and a 21 fair trial. (Doc. No. 1 at 6.) On January 24, 2012, George Neotti (“Respondent”) filed a 22 response in opposition. (Doc. No. 7.) On March 6, 2012, Petitioner filed a traverse to the 23 petition for writ of habeas corpus. (Doc. No. 9.) On July 25, 2012, the magistrate judge issued 24 a report and recommendation to deny the petition. (Doc. No. 12.) On August 16, 2012, 25 Petitioner filed an objection to the magistrate judge’s report and recommendation. (Doc. No. 26 14.) For the following reasons, the Court denies petition for writ of habeas corpus. 27 / / / 28 / / / -1- 11-cv-02016-h Dockets.Justia.com 1 2 BACKGROUND The following facts are taken from the California Court of Appeals decision in People 3 v. Harrington, No. D056964, 2011 WL 884007 (Cal. Ct. App. March 15, 2011). (Lodgment 4 No. 6.) The facts are presumed to be correct pursuant to 28 U.S.C. § 2254(e)(1): 5 FACTUAL BACKGROUND 6 9 On October 24, 2008, someone kicked in the door of a residence, entered the home, rummaged through a few rooms and left with a backpack and numerous valuables. One of the home’s occupants was present during the burglary. She ran to a neighbor’s house and called the police. The police arrested Harrington nearby. Harrington had the backpack and the other stolen items in his possession. The pattern on the soles of his shoes matched the mark on the door that was kicked in. 10 PERTINENT PROCEDURAL BACKGROUND 11 Before the jury entered the courtroom on the second day of trial during the People's case, the deputy district attorney stated that “one of the jurors . . . appear[ed] to be sleeping through some of the testimony” and “was sleeping during my opening statement.” The deputy district attorney concluded, “[a]nd I just have some concerns about him missing critical parts of witness testimony because of that . . . . Just thought it would be important to put that on the record in case it becomes a problem and he's missing much of the trial.” 7 8 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The court replied, “I did notice yesterday Juror Number 7 appeared to have his head down. And I couldn't tell for sure initially when I was looking at him whether his eyes were closed or not. He at some points appeared to be looking down at his notebook, and at other times did appear as if he might be sleeping. I did start to watch him. And there were times when I was watching him, he then would look up. So I actually couldn't tell for sure whether he was sleeping or not. [¶] But . . . I do agree with you there is that possibility. So I am happy to keep a very close eye on him again today, and certainly both sides can, too, as well.” The court asked the deputy district attorney and Harrington, who was representing himself, whether they wished the court to take any further action. Both said no. The court then asked Harrington, “You’re in agreement we should just continue to watch him today and make sure that he’s staying awake?” Harrington replied, “Yes, ma’am . . . . [E]very time I looked over there . . . he seemed awake to me. I haven’t seen him . . . asleep or nothing of that nature . . . . He wasn’t doing no more than what the rest of the jurors were doing . . . .” When the jury reentered the courtroom, the court said, “I did want to make a comment to you all about the importance of staying awake during testimony. I know that sometimes that’s difficult for some people, especially in the afternoon after you’ve had a nice big lunch. That can cause a problem to anyone under any circumstance. [¶] But I want to emphasize the importance of, obviously, I think it’s obvious, staying awake and paying attention to the evidence. And if you feel yourself nodding off, sometimes I don’t see it, I don’t notice it, but you’re the one that’s going to notice if you’re nodding off -2- 11-cv-02016-h 1 2 3 4 5 6 7 or somehow not getting to the point where you’re paying attention, let me know. It’s your obligation to let me know. And we’ll take a break so you can take a stretch, get a cup of coffee.” Later that day, near the beginning of the court’s instructions to the jury, the following occurred: “THE COURT: [¶] . . . [¶] Juror Number 7, are you listening? “JUROR 7: Yes. “THE COURT: Okay. You’ve got your eyes closed. So I can’t tell whether you’ve just got your eyes closed and you’re listening or not. 8 “JUROR 7: No. I’m listening. 9 “THE COURT: Okay. Thank you, sir.” 10 11 12 13 After the jury returned its verdict, Harrington asked the court to appoint counsel to represent him. The court granted the request. Appointed counsel filed a motion for a new trial. The motion argued the court erred by permitting Harrington to proceed in propria persona after a doubt arose about his competency to represent himself and to enter a valid waiver of his right to counsel. The motion stated that Harrington “didn’t notice a sleeping juror” but made no other mention of the matter. 14 15 Petitioner appealed the conviction to the California Court of Appeal on the grounds of 16 alleged juror misconduct. On March 15, 2011, the appellate court issued a decision affirming 17 the Petitioner’s conviction. See Harrington, 2011 WL 884007, at *1. On May 18, 2011, the 18 California Supreme Court denied the petition for review of the appellate court’s decision. 19 People v. Harrington, No. S191576, 2011 Cal. LEXIS 5220 (Cal. S. Ct. May 18, 2011). 20 On August 31, 2011, Petitioner filed a habeas corpus petition in this Court. (Doc. No. 21 1.) Petitioner did not file a state petition for habeas corpus in the California courts. (Doc. No. 22 1 at 3.) Petitioner alleges that he is entitled to relief based on juror misconduct. (Doc. No. 1 23 at 6.) 24 DISCUSSION 25 I. Standard of Review 26 A petitioner in state custody pursuant to the judgment of a state court may challenge 27 his detention only on the grounds that his custody is in violation of the United States 28 Constitution or the laws of the United States. 28 U.S.C. § 2254(a). The Anti-Terrorism and -3- 11-cv-02016-h 1 Effective Death Penalty Act of 1996 (“AEDPA”), Pub. L. No. 104-132, 110 Stat. 1214 2 (codified as amended at 28 U.S.C. § 2254(d)), applies to § 2254 habeas corpus petitions filed 3 after 1996. See Lindh v. Murphy, 521 U.S. 320, 336 (1997). Pursuant to AEDPA, when a 4 petitioner does not challenge a state court’s determination of the evidence, a § 2254 habeas 5 corpus petition must not be granted with respect to any claim adjudicated on the merits by a 6 state court, unless the adjudication resulted in a decision that “was contrary to, or involved an 7 unreasonable application of, clearly established federal law, as determined by the United States 8 Supreme Court” or “was based on an unreasonable determination of the facts in light of the 9 evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d). 10 A state court’s adjudication cannot be deemed contrary to, or an unreasonable 11 application of, clearly established Supreme Court precedent if there is no Supreme Court 12 decision that “squarely addresses the issue” before the state court or “clearly extends” an 13 applicable principle to the case before the federal court. Moses v. Payne, 555 F.3d 742, 760 14 (9th Cir. 2009) (citing Wright v. Van Patten, 522 U.S. 120 (2008) and Panetti v. Quaterman, 15 551 U.S. 930 (2007)). To be an unreasonable application of federal law, the state court 16 decision must be more than incorrect or erroneous; it must be objectively unreasonable. 17 Lockyear, 538 U.S. 63, 75 (2003). 18 Absent clear and convincing evidence to the contrary, a federal court must presume that 19 the factual findings of the state court are correct. 28 U.S.C. § 2254(e)(1). Conclusory 20 assertions will not suffice to overcome the presumption. See Miller-El v. Cockrell, 537 U.S. 21 322, 340 (2003). The state court’s decision will not be “overturned on factual grounds unless 22 objectively unreasonable in light of the evidence presented in the state-court proceeding.” Id. 23 When there is no reasoned decision from the state’s highest court, the Court “looks 24 through” to the last reasoned state court decision. Y1st v. Nunnemaker, 501 U.S. 797, 801-06 25 (1991). When the state court does not supply reasoning for its decision, an independent review 26 of the record is required to determine whether the state court clearly erred in its application of 27 controlling federal law. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). This 28 independent review is not de novo; the federal court defers to the state court’s ultimate -4- 11-cv-02016-h 1 decision. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). 2 II. Juror Misconduct 3 Petitioner argues that he is entitled to relief from his conviction based on a statement 4 made by the prosecutor to the court that he believed one of the jurors was sleeping through 5 some of the proceedings and testimony. (Doc. No. 1 at 6.) At the time of the trial, Petitioner 6 did not “see[] [Juror No. 7] . . . asleep or nothing [sic] of that nature . . . .” (Lodgment 6 at 3.) 7 Petitioner agreed with the court that they would continue to watch the juror to see if he falls 8 asleep; Petitioner did not request the court to take further action. (Lodgment 6 at 3.) Petitioner 9 alleged the misconduct denied him due process and a fair jury. (Doc. No. 1 at 6.) Petitioner 10 unsuccessfully raised the juror issue on direct appeal. The Court of Appeal concluded that “the 11 record does not demonstrate that Juror No. 7 slept at all.” (Lodgment 6 at 5.) 12 A. 13 A state court decision “based on a factual determination will not be overturned on Unreasonable Determination of the Facts 14 factual grounds unless objectively unreasonable in light of the evidence presented in the state15 court proceeding.” Miller-El, 537 U.S. at 340. Such factual determinations are governed by 16 section 2254(e)(1) and are presumed to be correct absent clear and convincing proof to the 17 contrary. Id. 18 Petitioner has failed to provide clear and convincing evidence contrary to the state 19 court’s factual findings. The record indicates that the court monitored Juror No. 7 immediately 20 after the prosecutor brought his concerns to the court’s attention, and the judge welcomed both 21 sides to monitor the jury as well. (Lodgment 6 at 2-3.) When addressed, Juror No. 7 22 responded. Although “eye closures, head nodding, and slumping in one’s chair” may evidence 23 sleeping, Boeken v. Phillip Morris, Inc., 122 Cal. App. 4th 684, 703 (2004), the court found 24 no indication that Juror No. 7 was in fact asleep during the trial. Petitioner, proceeding pro se, 25 stated that it did not appear that the juror was asleep and stated that “[h]e wasn’t doing no more 26 [sic] than what the rest of the jurors were doing . . . .” (Lodgment 6 at 3.) Based on the record, 27 the California Court of Appeal found no convincing proof in the record to indicate that the 28 juror actually fell asleep. (Lodgment 6 at 5.) -5- 11-cv-02016-h 1 Petitioner has provided no new evidence showing that Juror No. 7 was in fact sleeping 2 or being inattentive. Absent such a showing, the findings made in the state court concerning 3 the juror’s ability to serve are presumed correct. 28 U.S.C. § 2254(e)(1). Accordingly, the 4 California Court of Appeal’s rejection was not based on an unreasonable determination of the 5 facts in light of the evidence presented. 28 U.S.C. § 2254(d)(1). 6 B. 7 Absent clearly established Supreme Court case law, Juror No. 7's alleged inattentiveness Unreasonable Application of Federal Precedent 8 is not an automatic constitutional violation. Fletcher v. Hartley, 2011 U.S. Dist. LEXIS 52158, 9 at *22 (D. Colo., May 16, 2011). In Tanner v. United States, 483 U.S. 107 (1987), the Court 10 held that the Sixth Amendment did not compel a post-verdict evidentiary hearing be held to 11 investigate claims of jury misconduct because the interests of the defendant are protected by 12 other aspects of the trial process, including the parties’ ability to observe the jury and report 13 specific misconduct. Id. at 127. 14 Moreover, Petitioner is only entitled to habeas relief if he shows that the alleged jury 15 misconduct “had [a] substantial and injurious effect or influence in determining the jury’s 16 verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). To determine prejudice, courts 17 have looked to whether the district court was made aware of sleeping jurors, what actions the 18 court took in response, and whether the court determined that the juror was in fact asleep and 19 inattentive. United States v. McKeighan, 685 F.3d 956, 974 (10th Cir. 2012). For example, 20 in McKeighan, the court agreed to watch the jury after both parties alleged jurors were 21 sleeping. Id. The defendant did not request additional measures and the trial record did not 22 establish that any jurors were in fact sleeping. Id. at 975. The court held that the allegations 23 of inattentive jurors were too vague to support a finding of prejudice. Id. at 975. Other circuits 24 that have faced similar facts have also concluded that the defendant failed to establish 25 prejudice. See United States v. Fernández-Hernández, 652 F.3d 56, 74-75 (1st Cir. 2011); 26 United States v. Freitag, 230 F.3d 1019, 1023-24 (7th Cir. 2000). Here, Petitioner fails to show 27 prejudice. 28 / / / -6- 11-cv-02016-h 1 Petitioner additionally fails to meet the California standard for jury misconduct. “The 2 decision whether to investigate the possibility of juror . . . misconduct . . . rests within the 3 sound discretion of the trial court.” People v. Ray, 13 Cal. 4th 313, 343 (1996). “[J]uror 4 inattentiveness may constitute misconduct . . . .” People v. Bradford, 15 Cal. 4th 1229, 1349 5 (1997). “[However] the mere suggestion of juror inattention does not require a formal hearing 6 . . . .” People v. Espinoza, 3 Cal. 4th 806, 821 (1992). In Petitioner’s case, the California 7 Court of Appeal reasonably found that there was no proof that the juror was asleep during the 8 trial. Based on this finding, the alleged misconduct failed to approach the level of misconduct 9 required for the California standard of presumption of prejudice. (Lodgment No. 6 at 5.) 10 Accordingly, the California Court of Appeal’s rejection was not contrary to, nor did it 11 involve an unreasonable application of, clearly established federal law. 28 U.S.C. § 12 2254(d)(2). 13 CONCLUSION 14 Based on the foregoing, the Court denies Petitioner’s petition for writ of habeas corpus. 15 IT IS SO ORDERED. 16 DATED: September 13, 2012 17 18 ________________________________ MARILYN L. HUFF, District Judge UNITED STATES DISTRICT COURT 19 20 21 22 23 24 25 26 27 28 -7- 11-cv-02016-h
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
