Ronald Hurtado v. Stu Sherman , 669 F. App'x 410 ( 2016 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 27 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RONALD NATHANIEL HURTADO, No. 15-15184
Petitioner-Appellant, D.C. No. 4:11-cv-00037-PJH
v.
MEMORANDUM*
STU SHERMAN, Warden,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, Chief Judge, Presiding
Argued and Submitted September 12, 2016
San Francisco, California
Before: GOULD and BERZON, Circuit Judges, and SESSIONS,** District Judge.
California state prisoner Ronald Hurtado appeals the district court’s denial
of his 28 U.S.C. § 2254 habeas corpus petition challenging his convictions for
attempted murder, shooting at an occupied motor vehicle, and attempting to
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable William K. Sessions III, United States District Judge
for the District of Vermont, sitting by designation.
dissuade a witness. At voir dire before Hurtado’s trial, the state court denied
Hurtado’s for-cause challenge of a juror, referred to here as “Juror 10.” The state
appellate court affirmed. In his petition filed before the district court, Hurtado
argued that the state trial court violated his right to an impartial jury. Although the
district court denied Hurtado’s petition, it granted a certificate of appealability on
the juror issue.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We review the
district court’s denial of a habeas corpus petition de novo. Yee v. Duncan, 463
F.3d 893, 897 (9th Cir. 2006). To reverse the district court, we must hold that the
state appellate court’s decision was “contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the Supreme
Court,” or “was based on an unreasonable determination of the facts in light of the
evidence presented.” 28 U.S.C. § 2254(d).
The Sixth Amendment requires a fair trial, including “an impartial trier of
fact—a jury capable and willing to decide the case solely on the evidence before
it.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984)
(internal quotations omitted). Voir dire examination protects this right “by
exposing possible biases, both known and unknown, on the part of potential
jurors.” Id. When reviewing Juror 10’s voir dire answers on a habeas appeal, we
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must be mindful that unlike the trial judge, we were not present in the courtroom.
This matters because in determining juror challenges, a trial “judge’s appraisal is
ordinarily influenced by a host of factors impossible to capture fully in the record,”
including “inflection, sincerity, demeanor, candor, body language, and
apprehension of duty.” Skilling v. United States, 561 U.S. 358, 386 (2010).
Appellate courts lack such impressions, and so properly grant deference to the
ruling of the state trial court. Id.
At the beginning of questioning, some of Juror 10's answers raised
legitimate concerns. When asked whether she would follow the instruction on the
presumption of innocence, she responded, “I don’t know. I think I’ve probably
already in my mind decided.” When asked what that decision was, she said, “I just
think if [the defendant]’s made it this far, it wasn’t for doing nothing.” She also
stated that she did not think she could be fair and impartial and that as things stood
at the time, she would “lean towards guilty.”
But after a lengthy explanation by the court about the presumption of
innocence, the juror’s role, and what does and does not count as evidence, Juror 10
began to answer differently. When asked whether she could put aside her
assumptions concerning the defendant’s arrest and charging and decide strictly
based on the law and evidence, she responded, “Yeah, I guess.” After another
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lengthy explanation, this time by the prosecutor and followed by further
questioning, Juror 10 came around. She responded affirmatively to questions
about whether she could apply the presumption of innocence, whether she could
find the defendant not guilty if the evidence did not persuade her beyond a
reasonable doubt, and whether she could find him guilty if the evidence did so
persuade her. Hurtado notes that at one point after both the court and prosecutor
had given their explanations, Juror 10 answered a question about the presumption
of innocence and deciding based on the evidence with “I don’t know.” But Juror
10 made clear that her concern at that point was not with whether she could fairly
and properly decide based on the evidence. Rather, she was unsure whether she
was allowed to contradict her earlier statements indicating her inability to do so.
The prosecutor explained that Juror 10 was being asked to follow the rules of the
trial notwithstanding her initial reactions, and Juror 10 responded that she could
follow the rules. By the end of questioning, the trial court had conducted a
sufficient inquiry to determine whether Juror 10 was biased, and the inquiry had
yielded sufficient answers regarding her ability to decide the case impartially and
based on the evidence. See Skilling, 561 U.S. at 386. In light of these answers and
the deference courts grant trial judges on issues of juror bias, we cannot say that
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the state appeals court’s decision was objectively unreasonable or contrary to
federal law established by the Supreme Court.
AFFIRMED.
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