CA7 remands for hearing on effect of extrinsic information on jury deliberations.

Hall v. Zenk, No. 11-3911 (7th Cir. Aug. 29, 2012) (Flaum, J.) — The Seventh Circuit vacated a district court’s decision to grant an Indiana state prisoner’s § 2254 petition and remanded the case to the district court with instructions to conduct another evidentiary hearing (beyond the one that the state courts held) to determine whether the petitioner was prejudiced by the jury’s receiving extrinsic information regarding his guilt.

The petitioner was charged with murdering his five-year-old stepson. One of the trial jurors had a son who was in the same jail where the petitioner was held during trial. The juror’s son first told the juror that he believed the petitioner to be innocent, and then later the juror’s son told the juror that the people on his cellblock had decided that the petitioner was guilty. The juror shared these thoughts with the jury. The petitioner was convicted and sentenced to 65 years in prison.

After denying the petitioner’s motion to depose all the jurors, the trial court held a hearing on the question of whether the juror’s relaying this information from the jail prejudiced the deliberations. The trial judge found that extrinsic information reached the jurors, but that the petitioner was not prejudiced. Focusing on where the burden of proof lies in cases such as these, the Court of Appeals of Indiana affirmed the decision because it read state law as placing the burden on the defendant to prove prejudice. See Griffin v. State, 754 N.E.2d 899 (Ind. 2001).

After unsuccessfully seeking postconviction relief, the petitioner filed a § 2254 petition in federal court. The district court ruled that a presumption of prejudice applied in this situation, see Remmer v. United States, 347 U.S. 227 (1954), and that the Indiana courts’ decision instead to require the petitioner to prove prejudice was contrary to Remmer. Moreover, the district court found that the jury was influenced by the extrinsic information from the jail, and granted relief. The State then appealed the grant of relief.

In analyzing the parties’ arguments, the court asked and answered three questions. First, is the Remmer presumption of prejudice “clearly established federal law” that the Indiana courts were bound to follow? Second, if so, did the Indiana courts either contravene or unreasonably apply that clearly established federal law by placing the burden on the petitioner to show prejudice? And third, did the jury’s receipt of the extrinsic information have a substantial and injurious effect on its deliberations?

Much of the court’s discussion reads as an explication of the Supreme Court’s decisions on this point. The court had no doubt that Remmer established a presumption of prejudice whenever extrinsic information reaches the jury. The question was whether the subsequent decisions in Smith v. Phillips, 455 U.S. 212 (1982), and United States v. Olano, 507 U.S. 725 (1993), undermined this holding. Surveying the decisions of other courts of appeals on the question, the court ultimately sided with the Ninth Circuit and held that the Court of Appeals of Indiana contravened the Remmer presumption when it placed the burden on the petitioner to prove prejudice.

The district court concluded that the Indiana courts had made a factual finding that the state could not overcome the presumption of prejudice if it were required to do so, and granted relief after deferring to that factual finding as AEDPA requires. The Seventh Circuit took a different approach, concluding that the Indiana courts had “decided not to decide” whether the petitioner was prejudiced from the jury’s receipt of the extrinsic information from the jail. Faulting the district court for not requiring the petitioner to prove prejudice and the state courts for not making any factual determination in that regard, the Seventh Circuit was left with “grave doubt,” O’Neal v. McAninch, 513 U.S. 432 (1995), about whether the extrinsic information affected the jury’s deliberations. Consequently, it remanded the case to the district court to hold a hearing on whether the extrinsic information affected the jury’s deliberations.

CA9 holds defendant isn’t required to consent to insanity defense.

Rogovich v. Ryan, No. 08-99015 (9th Cir. Sept. 18, 2012) (Schroeder, J.) — The Ninth Circuit affirmed the denial of habeas relief to an Arizona death-row prisoner, holding that no clearly established federal law in 1994 required a criminal defendant’s affirmative consent on the record to a defense of insanity. Thus the Arizona Supreme Court did not unreasonably reject this claim on direct appeal.

The court also held:

The prosecutor’s closing argument was not improper, and trial counsel was not ineffective for failing to object, when the prosecutor said (characterizing the insanity defense), “They [the defense] are asking you to find this man not guilty by reason of insanity. That’s not guilty for taking away four of our citizens.”

Appellate counsel was not ineffective for failing to challenge the sole aggravating factor that made the petitioner eligible for the death penalty, because the Arizona Supreme Court’s mandatory review of the death sentence, see Ariz. Rev. Stat. § 13-703.01 (1994), encompassed this challenge. Thus the petitioner could not establish Strickland prejudice. See Gerlaugh v. Stewart, 129 F.3d 1027, 1045 (9th Cir. 1997).

CA10 finds hospital interview complied with Miranda.

Davis v. Workman, No. 11-6022 (10th Cir. Aug. 28, 2012) (Hartz, J.) — The Tenth Circuit affirmed the denial of habeas relief to an Oklahoma death-row prisoner. Its discussion focused mainly on the claims it certified relating to the petitioner’s interviews with police detectives while he was in the hospital recovering from injuries he suffered as a result of a one-car collision in which he was involved on the same day as the rape and murder in this case occurred.

The police interviewed the petitioner at the hospital twice — once on the afternoon of the day of the accident, and then a second time two days later. Both times he was given Miranda warnings and waived his Miranda rights.

1. But, the petitioner contended, he didn’t knowingly and intelligently waive his Miranda rights during the second interview because he was on morphine at the time of the interview. The Oklahoma Court of Criminal Appeals rejected this contention on direct appeal, observing that the petitioner “appeared to understand all questions asked and gave appropriate responses to the questions posed. The specificity of detail Davis was able to provide and the back and forth nature of the interview demonstrated that he was fully alert and comprehended what others said to him, thereby supplying strong evidence that he understood his rights as presented to him as well.” In postconviction proceedings the petitioner presented an affidavit from a doctor to support his theory that morphine interfered with his ability to understand his Mirandarights. But the Tenth Circuit characterized this affidavit as “hardly definitive” because it “merely states that there was a possibility of impairment.” Moreover, the petitioner was able to ask probing questions when the officers asked him to give a buccal swab sample. Thus the state courts did not unreasonably conclude that the petitioner had knowingly waived his Miranda rights.

2. Nor were his statements coerced because the officers called him a “cold-blooded killer” during the interview. “Defendant cites no Supreme Court authority suggesting that it is coercive to tell a suspect truthfully that the evidence would imply that he was guilty of a heinous crime unless he gives an explanation.” Thus the district court correctly denied relief on this claim.

3. Trial counsel was not ineffective for failing to present medical evidence of impairment in order to establish at a pretrial hearing that the Miranda waiver wasn’t knowing or intelligent. Relying on the postconviction affidavit, the Oklahoma Court of Criminal Appeals held that the petitioner suffered no prejudice under Strickland because the affidavit merely raised a possibility of impairment. The Tenth Circuit held that the OCCA’s conclusion regarding Strickland prejudice was not unreasonable. Nor could the court remand for an evidentiary hearing, because the claim had been adjudicated on the merits in state court and a federal court could not review any new evidence in connection with the claim. See Cullen v. Pinholster, 131 S. Ct. 1388 (2011); Black v. Workman, 682 F.3d 880, 895 (10th Cir. 2012).

4. The court certified for appeal an additional claim — that the petitioner’s statements were coerced because the interviewing detectives would not allow the petitioner to have pain medication until he completed his interviews. The court observed that the petitioner did not request a COA until his reply brief on appeal, thus depriving the state of an opportunity to brief the claim. But because the claim was meritless, the state suffered no prejudice from the lack of opportunity to address the claim.

5. And the court had to clear away two procedural issues before reaching the merits. First, the OCCA invoked a res judicata procedural bar when it addressed this claim in postconviction proceedings. A res judicata procedural bar does not support federal procedural default. See Cone v. Bell, 129 S. Ct. 1769 (2009). But the OCCA did not address actually this claim in direct appeal proceedings, meaning that the claim had not been adjudicated on the merits, and thus federal review was de novo.

6. On the merits, the court derided the claim as “flawed on many levels” and “conceptually confusing, almost incoherent.” There was scant evidence in the record to support the assertion that the detectives were withholding pain medication — just two statements on cross-examination during a pretrial hearing in which the petitioner said he “had to be submissive” while in the hospital. Moreover, “Ordinarily, when one thinks of a coerced confession, one thinks of law-enforcement officers telling the suspect that he must confess, or else.” But there was no specific evidence of this particular kind of threat in the record. Thus his statements were not coerced in this way, and trial counsel was not ineffective for failing to so argue.

7. Moreover, the petitioner forfeited his opportunity to ask for an evidentiary hearing on this claim by failing to ask for one in district court in such a way as to alert the court about what evidence would be
received. See United States v. Cervini, 379 F.3d 987 (10th Cir. 2004).

The court also denied a COA on a number of additional claims.

8. There was no constitutional violation from the prosecution calling a rebuttal witness that it had not previously noticed. There was no federal due process right based on the state-law procedural right to notice. See Elliott v. Martinez, 675 F.3d 1241 (10th Cir. 2012). And calling the witness did not make the trial fundamentally unfair.

9. The state courts did not unreasonably conclude that the evidence was sufficient to support the murder conviction, because review of such a claim had to encompass even the evidence that the petitioner asserted was inadmissible (here, the statements during the hospital interviews). See Lockhart v. Nelson, 488 U.S. 33 (1988).

10. No clearly established federal law required the trial judge to instruct the jury that convictions based on circumstantial evidence must exclude every reasonable hypothesis except that of guilt.

11. The state courts did not unreasonably deny the petitioner the ability to present evidence to the jury regarding an affair that the victim’s husband was having, because the evidence was marginally relevant at best.

12. And of course there was no cumulative error.