Mark Zana v. Dwight Neven

FILED
NOT FOR PUBLICATION
OCT 30 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARK ZANA, No. 15-17101
Petitioner-Appellant, D.C. No.
2:12-cv-01013-JCM-VCF
v.
DWIGHT NEVEN, Warden and ADAM MEMORANDUM*
PAUL LAXALT,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted August 15, 2017
San Francisco, California
Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and EZRA,** District
Judge.
Nevada state prisoner Mark Zana (Zana) appeals the district court’s denial of
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable David A. Ezra, United States District Judge for the
District of Hawaii, sitting by designation.
his petition for a writ of habeas corpus. Zana contends that he is entitled to a new
trial as a result of jury misconduct in his criminal trial. Specifically, Zana
maintains that the independent research conducted by Juror Thurman and
subsequent discussions of that research with other jurors constituted prejudicial
juror misconduct. Zana additionally requests that this court certify his claims
related to the district court’s denial of his motion to suppress and decision not to
conduct a Franks1 hearing. We affirm the decision of the district court and decline
to certify Zana’s uncertified claims.
As the Nevada Supreme Court concluded, Juror Thurman’s failed internet
research was juror misconduct under clearly established Supreme Court precedent.
See Turner v. Louisiana, 379 U.S. 466, 472-73 (1965) (prohibiting the introduction
of extraneous information to jurors). Because Juror Thurman’s internet research
was ultimately fruitless, the Nevada Supreme Court’s conclusion that no harm
resulted from this misconduct was not contrary to, or an unreasonable application
of, clearly established Supreme Court authority. See Davis v. Ayala, 135 S. Ct.
2187, 2197, reh’g denied, 136 S. Ct. 14 (2015) (providing that a habeas petitioner
is entitled to relief for assertions of trial error only if “the error was not harmless”).
1
Franks v. Delaware, 438 U.S. 154 (1978).
2
The additional juror conduct noted by Zana as potentially prejudicial did not
rise to the level of misconduct under Turner.2 Rather, those acts were common,
everyday experiences, that may be considered in the course of jury deliberations.
See McCleskey v. Kemp, 481 U.S. 279, 311 (1987) (recognizing that jurors rely on
their life experiences).
We decline to certify Zana’s claims regarding his motion to suppress and his
request for a Franks hearing because Zana has not made a “substantial showing of
the denial of a constitutional right.” Robertson v. Pichon, 849 F.3d 1173, 1187 (9th
Cir. 2017) (citation omitted).
AFFIRMED.
2
During an evidentiary hearing, juror testimony revealed that at least one
juror observed children at church in order to determine the ages of children in
general. Another juror revealed that a fellow juror observed girls in casinos to
gauge if he could discern their ages. Juror Thurman also conducted an
“experiment” placing his cell phone and keys in his pants pocket, and attempting to
stick his hands into his pocket while seated. The experiment was apparently
intended to test the credibility of witnesses.
3