Brian Figge v. Scott Frauenheim

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 24 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN KEITH FIGGE, No. 18-55855
Petitioner-Appellant, D.C. No.
2:16-cv-07408-DSF-KES
v.
SCOTT FRAUENHEIM, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Dale S. Fischer, District Judge, Presiding
Submitted May 13, 2020**
Pasadena, California
Before: WARDLAW, COOK,*** and HUNSAKER, Circuit Judges.
Brian Keith Figge appeals the district court’s denial of his petition for a writ
of habeas corpus following his convictions for child sexual assault under California
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Deborah L. Cook, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
Penal Code §§ 269, 286, and 288A. We have jurisdiction pursuant to 28 U.S.C. §§
1291 and 2253(a), and we affirm.1
We review the denial of a petition for writ of habeas corpus de novo.
Murray v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014). Because Figge’s petition is
governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
we grant the writ only if the state 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 in the State court proceeding.” 28 U.S.C. §
2254(d).
1. The California Court of Appeal reasonably determined that the record
showed “a demonstrable reality that Juror No. 11 was not willing to engage in the
deliberative process,” and that Juror No. 11 was therefore properly discharged for
failing to deliberate. All four other jurors whom the trial court interviewed agreed
that Juror No. 11 had a closed mind and was refusing to deliberate. These jurors
described Juror No. 11 as actively resisting the process, including by saying “I
don’t believe in these scenarios,” failing to “acknowledge that there was anything
there to talk about,” and “not cooperating with the process.” Figge argues that
some of the jurors’ comments are better interpreted as revealing frustration with
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We grant Figge’s unopposed motion for judicial notice.
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Juror No. 11 for being a holdout against conviction, rather than for failing to
deliberate. But we give state-court decisions “the benefit of the doubt,” Woodford
v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam), and “[c]onsidering these
comments, it was not unreasonable for the state appellate court to find” that Juror
No. 11 refused to deliberate. Williams v. Johnson, 840 F.3d 1006, 1010 (9th Cir.
2016); see Bell v. Uribe, 748 F.3d 857, 868 (9th Cir. 2014) (upholding dismissal of
a holdout juror who also failed to deliberate). The California Court of Appeal
instead reasonably concluded that “Juror No. 11 was at times listening and talking,
but he was not engaging in an evaluation of other jurors’ opinions and he at times
withdrew from the deliberations because he did not want to consider the points
raised by other jurors.”
Nor was the California Court of Appeal’s decision based on a defective fact-
finding process. Figge argues that the trial court’s decision to interview only Juror
No. 11 and the four complaining jurors, but not the remaining seven jurors,
rendered the fact-finding process defective under Milke v. Ryan, 711 F.3d 998,
1007 (9th Cir. 2013). In Milke, however, we held that a trial court’s fact-finding
process was defective because the prosecution violated an “‘inescapable’
constitutional obligation” to turn over exculpatory evidence under Brady and
Giglio. Id. (quoting Kyles v. Whitley, 514 U.S. 419, 438 (1995)). By contrast,
Figge points to no such obligation here. Although we have encouraged courts to
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take “great pains” to preserve a jury, Bell, 748 F.3d at 868, Perez v. Marshall, 119
F.3d 1422, 1427 (9th Cir. 1997), the Supreme Court has never adopted such a
requirement. Cf. Williams, 840 F.3d at 1010 (“Supreme Court case law in the area
of juror bias is sparse.”). Further, the defective process in Milke was not “because
of anything petitioner did or failed to do,” but rather the result of the prosecution’s
independent failure to satisfy its discovery obligation. 711 F.3d at 1007. The fact-
finding process here was not concealed from Figge; his counsel participated in it,
questioned the five jurors who were interviewed, and argued that the four jurors
were criticizing Juror No. 11 as a holdout, rather than for failing to deliberate.
Figge did not object to the trial court’s fact-finding process or ask to interview the
remaining seven jurors, and the trial court said nothing to suggest it would have
denied such a request. Because Figge’s counsel participated fully in the process
and had the opportunity to interview the remaining jurors, but did not, we reject his
argument that the fact-finding process was defective.
Therefore, the California Court of Appeal’s conclusion that the trial court
properly excused Juror No. 11 for failing to deliberate was not based on an
“unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2).
2. The California Court of Appeal’s conclusion that Figge’s Confrontation
Clause rights were not violated was not contrary to, or an unreasonable application
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of, clearly established federal law. No clearly established law holds that a
defendant has a Sixth Amendment right to introduce extrinsic evidence for the
purpose of impeachment. See Nevada v. Jackson, 569 U.S. 505, 512 (2013)
(“[T]his Court has never held that the Confrontation Clause entitles a criminal
defendant to introduce extrinsic evidence for impeachment purposes.”). And the
California Court of Appeal reasonably concluded that the jury would not “have
received a significantly different impression of [the witness’s] credibility had
[petitioner’s] counsel been permitted to pursue his proposed line of cross-
examination.” Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986).
Figge sought to introduce evidence that Jane Doe 1 had a normal sexual
relationship with a previous boyfriend to impeach her statement that “I don’t have
normal relationships with boyfriends.” But the value of this proposed
impeachment was low. Jane Doe 1 did not testify that she never had sex with prior
boyfriends and, in context, her statement communicated a generalized discomfort
with men, rather than a specific inability to have a normal sex life due to the abuse.
Moreover, the jury was unmoved by the much stronger impeachment evidence that
was offered, including evidence that Jane Doe 1 hated Figge, discrepancies in her
testimony about the number of times the sexual assault occurred and Figge’s
conduct towards her afterwards, and testimony from Jane Doe 1’s second
boyfriend that she threatened to retaliate against him by making false allegations of
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physical abuse against him to the police. Given this evidence, “fairminded jurists
could disagree” as to whether the jury would have had a significantly different
impression of Jane Doe 1’s credibility. Woods v. Etherton, 136 S. Ct. 1149, 1151
(2016) (per curiam) (quoting Harrington v. Richter, 562 U.S. 86, 101 (2011)). As
such, § 2254(d)(1) precludes relief. See id.
AFFIRMED.
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