Jofama Coleman v. Stuart Sherman

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOFAMA REO COLEMAN, No. 15-55826
Petitioner-Appellant, D.C. No.
2:10-cv-02343-VBF-RNB
v.
STUART SHERMAN, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Argued and Submitted March 6, 2018
Pasadena, California
Before: GRABER, W. FLETCHER, and OWENS, Circuit Judges.
Jofama Reo Coleman appeals from the district court’s denial of his petition
for habeas relief under 28 U.S.C. § 2254. As the parties are familiar with the facts,
we do not recount them here. We have jurisdiction under 28 U.S.C. § 2253, and
we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
1. The jury’s receipt and consideration of extrinsic prior-arrest evidence did
not have a “substantial and injurious” effect on the jury’s verdict. Davis v. Ayala,
135 S. Ct. 2187, 2197–98 (2015) (quoting O’Neal v. McAninch, 513 U.S. 432, 436
(1995)).1 In the context of a juror-misconduct claim, the “appropriate inquiry is
whether there was a direct and rational connection between extrinsic material and
the prejudicial jury conclusion, and whether the misconduct relates directly to a
material aspect of the case.” Mancuso v. Olivarez, 292 F.3d 939, 953 (9th Cir.
2002). We consider
(1) whether the extrinsic material was actually
received, and if so, how; (2) the length of time it was
available to the jury; (3) the extent to which the jury
discussed and considered it; (4) whether the extrinsic
material was introduced before a verdict was reached, and
if so, at what point in the deliberations it was introduced;
and (5) any other matters which may bear on the issue of
. . . whether the introduction of extrinsic material
[substantially and injuriously] affected the verdict.
Id. at 951–52 (alterations in original) (quoting Bayramoglu v. Estelle, 806 F.2d
880, 887 (9th Cir. 1986)). As to the fifth factor, we further ask
1. whether the prejudicial statement was ambiguously
phrased; 2. whether the extraneous information was
otherwise admissible or merely cumulative of other
evidence adduced at trial; 3. whether a curative instruction
1
Because we conclude that any juror misconduct was harmless even
under de novo review, see Davis, 135 S. Ct. at 2197–98, we do not reach the
question whether Mr. Coleman’s federal juror-misconduct claim was “adjudicated
on the merits” by the California Court of Appeal such that AEDPA applies, see 28
U.S.C. § 2254(d).
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was given or some other step taken to ameliorate the
prejudice; 4. the trial context; and 5. whether the statement
was insufficiently prejudicial given the issues and
evidence in the case.
Id. at 952 (quoting United States v. Keating, 147 F.3d 895, 902–03 (9th Cir.
1998)).
Here, it is undisputed that inadmissible extrinsic material was received at the
outset of the jury’s deliberations and available throughout its deliberations, which
lasted more than two full days. One juror wrote that she “kn[e]w for a fact that the
details of this prior arrest influenced the jury’s decision in determining the final
verdict,” and during the district court’s post-trial hearings on this matter, four of
the twelve jurors testified that some form of extrinsic criminal-history evidence
had been mentioned during deliberations.
Still, all four of those jurors testified that the evidence was not discussed at
length, and one recalled that the jurors were aware that they were not to consider
that evidence. Moreover, the prejudicial information was phrased ambiguously,
and although the trial court did not give a curative instruction specifically
addressing the extrinsic evidence, the court did instruct the jury that they were to
rely only on evidence received at trial. See Mancuso, 292 F.3d at 952.
Importantly, the state trial judge did not believe a new trial was warranted
after listening to both the evidence at trial and the jurors’ testimony at multiple
post-trial hearings on the effect of the prior-arrest information. See id. at 953
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(citing United States v. Hanley, 190 F.3d 1017, 1031 (9th Cir. 1999)). In denying
Mr. Coleman’s motion for a new trial, the trial judge stated that the evidence
against Mr. Coleman was “overwhelming.” In the context of this case, that
conclusion requires an evaluation of the credibility of the eyewitnesses who
identified Mr. Coleman as the driver of the van, and we have long recognized that
trial courts are in the best position to evaluate the strength of live witness
testimony on account of their “opportunity to view the demeanor of the witnesses.”
United States v. Chesher, 678 F.2d 1353, 1358 n.3 (9th Cir. 1982). For the same
reason, the state court’s post-trial findings regarding the jurors’ impartiality are
also entitled to great weight. See id.
As the extrinsic evidence did not have a substantial and injurious effect on
the jury’s verdict, we cannot award habeas relief on that ground.
2. As to Mr. Coleman’s prosecutorial misconduct claim, the California
Court of Appeal did not unreasonably apply federal law or rest its analysis on an
unreasonable determination of fact. 28 U.S.C. § 2254(d). Given defense counsel’s
decision not to request a curative instruction, reflecting a judgment that the
prosecutor’s references to “booking” were an unfortunate but forgettable lapse, it
was not unreasonable for the California Court of Appeal to conclude that those
remarks did not “so infect[] the trial with unfairness as to make the resulting
conviction a denial of due process.” Darden v. Wainwright, 477 U.S. 168, 181
4
(1986) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also
Harrington v. Richter, 562 U.S. 86, 103 (2011). And as discussed above, in light
of the trial court’s post-trial factual findings, it was not unreasonable for the
California Court of Appeal to conclude that the prosecutor’s failure to redact the
prior-arrest information did not irredeemably infect the trial with unfairness. See
Darden, 477 U.S. at 181; see also Richter, 562 U.S. at 103. Therefore, habeas
relief on Mr. Coleman’s prosecutorial misconduct claim is barred by 28 U.S.C.
§ 2254(d).
AFFIRMED.
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