Rickey Majors v. E. McDaniel ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 08 2011
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICKEY TODD MAJOR, No. 10-15742
Petitioner - Appellant, D.C. No. 3:99-cv-00237-LRH-
RAM
v.
E. K. MCDANIEL; FRANKIE S. DEL MEMORANDUM*
PAPA,
Respondents - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted March 15, 2011
San Francisco, California
Before: PAEZ, BERZON, and BEA, Circuit Judges.
Nevada state prisoner Rickey Todd Major (“Major”) appeals the district
court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.
In a previous memorandum disposition, we denied Major’s appeal of the two
issues the district court certified for appeal under 28 U.S.C. § 2253(c), both of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
which related to the alleged ineffectiveness of Major’s trial attorney. See Major v.
McDaniel, No. 10–15742, 2011 WL 1097750, at *1 (9th Cir. Mar. 25, 2011)
(mem. disp.). At the same time, we granted a certificate of appealability and
ordered supplemental briefing on Ground Two of Major’s Amended Petition for
Habeas Corpus, which alleged that Major’s right to due process and a fair trial
were violated when the trial court refused to dismiss a juror whose coworker
remarked that the prosecution had possession of a knife used in the murder for
which Major was convicted.1 See id. at *2. We now address that issue.
Major’s petition is governed by the Antiterrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), so we cannot grant habeas
relief unless we conclude that the last reasoned Nevada state court decision “‘was
contrary to’ federal law then clearly established in the holdings of th[e] [Supreme]
Court; or that it ‘involved an unreasonable application of’ such law; or that it ‘was
based on an unreasonable determination of the facts’ in light of the record before
[it].’” Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (citations omitted). We
review the district court’s denial of a habeas petition de novo. See Martinez v.
1
We denied Major’s request for a certificate of appealability as to the
remaining uncertified issues. See id. at *2.
2
Schriro, 623 F.3d 731, 735 (9th Cir. 2010). Upon consideration of the
supplemental briefing on the final issue presented by Major’s appeal, we affirm.
1. Mattox v. United States, 146 U.S. 140 (1892), and Remmer v. United
States (“Remmer I”), 347 U.S. 227 (1954) clearly establish that any possibly
prejudicial “private communication . . . with a juror during a trial about the matter
pending before the jury is, for obvious reasons, deemed presumptively prejudicial,”
and “the burden rests heavily upon the Government to establish, after notice to and
hearing of the defendant, that such contact with the juror was harmless to the
defendant.” Id. at 229; see also Mattox, 146 U.S. at 150 (“Private
communications, possibly prejudicial, between jurors and third persons . . . are
absolutely forbidden, and invalidate the verdict, at least unless their harmlessness
is made to appear.”). The communications at issue here with a non-juror were
substantive and so “possibly prejudicial,” id., and yet, contrary to Mattox and
Remmer I, the Nevada Supreme Court held that Major was entitled only to the
hearing that he received, at which he had the burden of proving actual bias. The
Nevada Supreme Court’s decision was therefore “contrary to” clearly established
Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).
2. Because the Nevada Supreme Court applied the wrong legal standard,
“we must . . . evaluate de novo [Major’s] constitutional claim[], without limiting
3
ourselves to the reasoning of the state court.” Frantz v. Hazey, 533 F.3d 724, 739
(9th Cir. 2008) (en banc). Doing so, we conclude that giving Major the benefit of a
presumption of prejudice, the record nonetheless demonstrates that there was no
reasonable possibility that the communications at issue influenced the verdict. See
Remmer v. United States (“Remmer II”), 350 U.S. 377, 381–82 (1956); Mattox,
146 U.S. at 150–51; Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691, 697
(9th Cir. 2004); United States v. Dutkel, 192 F.3d 893, 899 (9th Cir. 1999).
The juror Major contends should have been dismissed did not solicit the
communication from her coworker; she took steps to put an end to the
conversation; and she conscientiously reported it to the trial judge. The juror was
questioned about the communication by the prosecutor, Major’s attorney, and the
trial judge. Not only did the juror state unequivocally that she would not consider
the communication in any way, but, crucially, she also said emphatically that she
did not believe that her coworker was telling the truth, as the coworker was
apparently prone to lying. Accordingly, presuming prejudice, as we must, the
presumption was overcome, and there was no reasonable possibility that the
communications influenced the verdict.
AFFIRMED.
4