NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GERALD VON TOBEL, No. 18-15892
Petitioner-Appellant, D.C. No. 3:10-cv-00073-LRH-VPC v.
JAMES BENEDETTI; ATTORNEY MEMORANDUM* GENERAL FOR THE STATE OF NEVADA,
Respondents-Appellees.
Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding
Argued and Submitted December 2, 2019 San Francisco, California
Before: SILER,** BYBEE, and R. NELSON, Circuit Judges.
Gerald Von Tobel, a Nevada state prisoner, appeals the district court’s denial
of his petition for a writ of habeas corpus. We have jurisdiction pursuant to 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. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Von Tobel was convicted in 2005 of numerous counts of physical and sexual
abuse of his girlfriend’s three children. After the jury was released, the judge
invited them to “stay and chat” with the attorneys to “discuss the case.” When
asked what factors in the case had an impact on the verdict, Juror No. 200 stated:
“It’s like my neighbor, who is a cop, always says, ‘[h]e wouldn’t be here if he
didn’t do something.’” This comment resulted in a motion for a new trial and an
evidentiary hearing. At the evidentiary hearing, Juror No. 200 testified that his
neighbor’s comment had no effect on him or the verdict. The court denied Von
Tobel’s motion for a new trial and the Nevada Supreme Court affirmed the denial.
Von Tobel then filed a federal habeas petition challenging the propriety of the test
used by the Nevada Supreme Court to evaluate new trial motions resulting from
juror misconduct. The district court denied the petition, but granted a certificate of
appealability.
A district court’s denial of a petition for habeas corpus under 28 U.S.C.
§ 2254 is reviewed de novo. Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). A
federal court cannot grant a petition for habeas corpus to a prisoner in state custody
for a claim that was adjudicated on the merits in state court unless the adjudication
of the claim (1) “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or (2) “resulted in a decision that was based
2 18-15892 on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). A state court decision is
“contrary to” Supreme Court precedent “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
After the Nevada Supreme Court’s decision in this case, this court
recognized that a two-part test derived from two Supreme Court cases—Remmer v.
United States, 347 U.S. 227 (1954), and Mattox v. United States, 146 U.S. 140
(1892)—constitutes clearly established federal law for analyzing improper contacts
between jurors and outside parties. See Godoy v. Spearman, 861 F.3d 956, 964
(9th Cir. 2017) (en banc). Von Tobel contends that the test from Meyer v. State, 80
P.3d 447 (Nev. 2003), used by the Nevada Supreme Court to evaluate the contact
between Juror No. 200 and his neighbor is contrary to, or an unreasonable
application of, the Mattox/Remmer test. It is not.
Under Meyer, to obtain a new trial based on juror misconduct the petitioner
must show that (1) the misconduct occurred and (2) the misconduct prejudiced
him. 80 P.3d at 455. If the misconduct is deemed “egregious,” there is a
conclusive presumption of prejudice without the petitioner’s having to show actual
prejudice. Id.
3 18-15892 Under Mattox/Remmer, the court first asks “whether the contact was
‘possibly prejudicial.’” Godoy, 861 F.3d at 962 (quoting Mattox, 146 U.S. at 150).
If so, the contact is “presumptively prejudicial” and the court moves to step two
where “the ‘burden rests heavily upon the [state] to establish’ the contact was
actually ‘harmless.’” Id. (quoting Remmer, 347 U.S. at 229).
Von Tobel contends that Meyer is contrary to Mattox/Remmer because it
placed a more onerous burden on him to show prejudice. He argues that under
Mattox/Remmer, he only has to show that the contact was possibly prejudicial—
which is a low threshold—whereas Meyer required him to show that the contact
actually prejudiced him. Von Tobel misreads Meyer. Meyer only requires the
petitioner to show “a reasonable probability or likelihood that the juror misconduct
affected the verdict” in order to prevail on a motion for a new trial. 80 P.3d at 455.
The Nevada Supreme Court had defined a reasonable probability as a “probability
sufficient to undermine confidence in the outcome.” Lobato v. State, 96 P.3d 765,
772 (Nev. 2004) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). In
Godoy, we described the petitioner’s burden under Mattox/Remmer as requiring the
petitioner to present “evidence of an external contact that has a tendency to be
injurious to the defendant” or “evidence of a contact sufficiently improper as to
raise a credible risk of affecting the outcome of the case.” 861 F.3d at 967
(internal quotation marks and citations omitted). “[A] probability sufficient to
4 18-15892 undermine confidence in the outcome,” Lobato, 96 P.3d at 772, is similar to
“rais[ing] a credible risk of affecting the outcome,” Godoy, 861 F.3d at 967. And,
most importantly, neither Mattox nor Remmer precisely delineates the petitioner’s
burden. So, even if the burdens under Meyer and Godoy are different, there was no
decision of the Supreme Court that precludes the Nevada Supreme Court from
requiring the petitioner to show a reasonable probability or likelihood that the
contact affected the verdict. See Wright v. Van Patten, 552 U.S. 120, 126 (2008)
(per curiam) (stating that Supreme Court cases must give a “clear answer to the
question presented” to be clearly established federal law).
Von Tobel also contends that the application of the Meyer test here is
contrary to, or an unreasonable application of, Mattox/Remmer because the Nevada
Supreme Court did not presume Juror No. 200’s contact with his neighbor was
prejudicial. He argues that Meyer requires contact to be egregious for a contact to
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 9 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
GERALD VON TOBEL, No. 18-15892
Petitioner-Appellant, D.C. No. 3:10-cv-00073-LRH-VPC v.
JAMES BENEDETTI; ATTORNEY MEMORANDUM* GENERAL FOR THE STATE OF NEVADA,
Respondents-Appellees.
Appeal from the United States District Court for the District of Nevada Larry R. Hicks, District Judge, Presiding
Argued and Submitted December 2, 2019 San Francisco, California
Before: SILER,** BYBEE, and R. NELSON, Circuit Judges.
Gerald Von Tobel, a Nevada state prisoner, appeals the district court’s denial
of his petition for a writ of habeas corpus. We have jurisdiction pursuant to 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. ** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Von Tobel was convicted in 2005 of numerous counts of physical and sexual
abuse of his girlfriend’s three children. After the jury was released, the judge
invited them to “stay and chat” with the attorneys to “discuss the case.” When
asked what factors in the case had an impact on the verdict, Juror No. 200 stated:
“It’s like my neighbor, who is a cop, always says, ‘[h]e wouldn’t be here if he
didn’t do something.’” This comment resulted in a motion for a new trial and an
evidentiary hearing. At the evidentiary hearing, Juror No. 200 testified that his
neighbor’s comment had no effect on him or the verdict. The court denied Von
Tobel’s motion for a new trial and the Nevada Supreme Court affirmed the denial.
Von Tobel then filed a federal habeas petition challenging the propriety of the test
used by the Nevada Supreme Court to evaluate new trial motions resulting from
juror misconduct. The district court denied the petition, but granted a certificate of
appealability.
A district court’s denial of a petition for habeas corpus under 28 U.S.C.
§ 2254 is reviewed de novo. Dows v. Wood, 211 F.3d 480, 484 (9th Cir. 2000). A
federal court cannot grant a petition for habeas corpus to a prisoner in state custody
for a claim that was adjudicated on the merits in state court unless the adjudication
of the claim (1) “resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States” or (2) “resulted in a decision that was based
2 18-15892 on an unreasonable determination of the facts in light of the evidence presented in
the State court proceeding.” 28 U.S.C. § 2254(d). A state court decision is
“contrary to” Supreme Court precedent “if the state court arrives at a conclusion
opposite to that reached by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
After the Nevada Supreme Court’s decision in this case, this court
recognized that a two-part test derived from two Supreme Court cases—Remmer v.
United States, 347 U.S. 227 (1954), and Mattox v. United States, 146 U.S. 140
(1892)—constitutes clearly established federal law for analyzing improper contacts
between jurors and outside parties. See Godoy v. Spearman, 861 F.3d 956, 964
(9th Cir. 2017) (en banc). Von Tobel contends that the test from Meyer v. State, 80
P.3d 447 (Nev. 2003), used by the Nevada Supreme Court to evaluate the contact
between Juror No. 200 and his neighbor is contrary to, or an unreasonable
application of, the Mattox/Remmer test. It is not.
Under Meyer, to obtain a new trial based on juror misconduct the petitioner
must show that (1) the misconduct occurred and (2) the misconduct prejudiced
him. 80 P.3d at 455. If the misconduct is deemed “egregious,” there is a
conclusive presumption of prejudice without the petitioner’s having to show actual
prejudice. Id.
3 18-15892 Under Mattox/Remmer, the court first asks “whether the contact was
‘possibly prejudicial.’” Godoy, 861 F.3d at 962 (quoting Mattox, 146 U.S. at 150).
If so, the contact is “presumptively prejudicial” and the court moves to step two
where “the ‘burden rests heavily upon the [state] to establish’ the contact was
actually ‘harmless.’” Id. (quoting Remmer, 347 U.S. at 229).
Von Tobel contends that Meyer is contrary to Mattox/Remmer because it
placed a more onerous burden on him to show prejudice. He argues that under
Mattox/Remmer, he only has to show that the contact was possibly prejudicial—
which is a low threshold—whereas Meyer required him to show that the contact
actually prejudiced him. Von Tobel misreads Meyer. Meyer only requires the
petitioner to show “a reasonable probability or likelihood that the juror misconduct
affected the verdict” in order to prevail on a motion for a new trial. 80 P.3d at 455.
The Nevada Supreme Court had defined a reasonable probability as a “probability
sufficient to undermine confidence in the outcome.” Lobato v. State, 96 P.3d 765,
772 (Nev. 2004) (quoting Strickland v. Washington, 466 U.S. 668, 694 (1984)). In
Godoy, we described the petitioner’s burden under Mattox/Remmer as requiring the
petitioner to present “evidence of an external contact that has a tendency to be
injurious to the defendant” or “evidence of a contact sufficiently improper as to
raise a credible risk of affecting the outcome of the case.” 861 F.3d at 967
(internal quotation marks and citations omitted). “[A] probability sufficient to
4 18-15892 undermine confidence in the outcome,” Lobato, 96 P.3d at 772, is similar to
“rais[ing] a credible risk of affecting the outcome,” Godoy, 861 F.3d at 967. And,
most importantly, neither Mattox nor Remmer precisely delineates the petitioner’s
burden. So, even if the burdens under Meyer and Godoy are different, there was no
decision of the Supreme Court that precludes the Nevada Supreme Court from
requiring the petitioner to show a reasonable probability or likelihood that the
contact affected the verdict. See Wright v. Van Patten, 552 U.S. 120, 126 (2008)
(per curiam) (stating that Supreme Court cases must give a “clear answer to the
question presented” to be clearly established federal law).
Von Tobel also contends that the application of the Meyer test here is
contrary to, or an unreasonable application of, Mattox/Remmer because the Nevada
Supreme Court did not presume Juror No. 200’s contact with his neighbor was
prejudicial. He argues that Meyer requires contact to be egregious for a contact to
be presumptively prejudicial, whereas Mattox and Remmer establish a “low
threshold” for a contact presumptively prejudicial. Godoy, 861 F.3d at 967
(quoting Tarango v. McDaniel, 837 F.3d 936, 949 (9th Cir. 2016)). However, the
presumptions of prejudice in Meyer and in Mattox/Remmer are wholly different
concepts. In Meyer, if the petitioner shows that egregious misconduct occurred,
there is a conclusive presumption of prejudice without the petitioner’s having to
show prejudice. Meyer, 80 P.3d at 455. If the misconduct is not egregious, the
5 18-15892 presumption of prejudice does not apply, and the petitioner retains the burden to
show a reasonable probability that the misconduct affected the verdict. Id. In
Mattox/Remmer, after the petitioner shows contact that is possibly prejudicial
occurred, there is a rebuttable presumption of prejudice. Godoy, 861 F,3d at 967.
Thus, the two presumptions of prejudice are different conceptually—one obviates
the need to show any prejudice and the other indicates the petitioner has met his
burden of showing possible prejudice. But both Meyer—in those cases deemed
non-egregious—and Mattox/Remmer—in all cases—require the petitioner to show
that the juror misconduct resulted in at least possible prejudice. Whether the state
and federal tests diverge after this point is of no issue here, because Von Tobel
failed to make this threshold showing. And so, denying the petition in this case is
not contrary to, or an unreasonable application of, clearly established federal law.
Von Tobel also requests that we expand the certificate of appealability to
include his claims of actual innocence and ineffective assistance of counsel. See
28 U.S.C. § 2253(c)(1); 9th Cir. R. 22–1(e). We decline to do so because Von
Tobel has not made a “substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
For these reasons, the district court correctly denied Von Tobel’s petition for
a writ of habeas corpus under 28 U.S.C. § 2254.
AFFIRMED.
6 18-15892