Larry Bishop v. James Robertson

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 8, 2025
• Docket: 22-55858
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 8 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

LARRY D. BISHOP, No. 22-55858

Petitioner-Appellant, D.C. No. 2:20-cv-07473-RGK-JEM v.

JAMES ROBERTSON, Warden, MEMORANDUM*

Respondent-Appellee.

JERRON DONALD HARRIS, No. 23-55270

Petitioner-Appellant, D.C. No. 2:20-cv-06935-RGK-JEM v.

CALIFORNIA DEPARTMENT OF CORRECTIONS AND REHABILITATION; et al.,

Respondents-Appellees.

Appeals from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted June 12, 2025 Pasadena, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: CLIFTON, BYBEE, and FORREST, Circuit Judges.

Jerron Donald Harris and Larry D. Bishop (“Petitioners”) appeal the

dismissals by the district court of their 28 U.S.C. § 2254 petitions for writs of

habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Petitioners

have not demonstrated that the state court’s last reasoned decision was either

contrary to clearly established law or based upon an unreasonable determination of

facts. Thus, we affirm the dismissals of their petitions.

In December 2012, members of a Pasadena gang drove an SUV through an

intersection and fired shots at another car, hitting the driver and killing a bystander.

Petitioners were jointly charged with multiple felonies, including murder, and tried

together by a jury.

Before the jurors were impaneled, they were asked to fill out a

questionnaire, which included the prompt to “describe your job.” Juror No. 5

responded: “I am an Administrative Clerk for the City of Los Angeles. My job

consists of filing and data entry.” Later, in a declaration submitted after the trial by

Petitioners’ counsel, Juror No. 5 admitted that she “purposefully left out” the facts

that she worked for the Los Angeles Police Department (LAPD) gangs and

narcotics unit as an administrative clerk and that she had previously been a

dispatcher for LAPD. In the declaration she attested that she “willfully chose to

conceal” her employment history, because she had previously been on several jury

2 22-55858 23-55270 panels, had never been chosen, and had “always wanted to be on jury duty.” Juror

No. 5 was selected for service and impaneled. At some point during trial, she

informed the rest of the jury of her work experience. Petitioners were found guilty

of murder and sentenced to life without parole. They are currently in state custody.

Juror No. 5’s actions came to light after the verdicts were returned. Both

Petitioners filed motions for a new trial alleging misconduct by the juror, with

Bishop’s counsel requesting an evidentiary hearing on the matter.1 They submitted

declarations from Jurors No. 5 and 7 in support. The trial court concluded there

was nothing in the declarations that demonstrated Juror No. 5 “used her position to

give the jurors extraneous information,” that the juror was credible when she

“indicated she could be fair,” and that her reason for concealing her position was

“innocent.” It held that there was no substantial likelihood of prejudice and denied

the motions.

On direct appeal, the California Court of Appeal declined to decide whether

the juror who provided truthful answers on voir dire committed misconduct when

she omitted information she thought the parties would find relevant. Instead, the

1 The California Court of Appeal determined that Harris forfeited this claim before resolving both Petitioners’ claims on the merits. We also choose to resolve Harris’ claim on the merits. Flournoy v. Small, 681 F.3d 1000, 1004 n.1 (9th Cir. 2012) (“While we ordinarily resolve the issue of procedural bar prior to any consideration of the merits on habeas review, we are not required to do so when a petition clearly fails on the merits.”) (citation omitted). 3 22-55858 23-55270 court assumed that Juror No. 5 engaged in misconduct that created a rebuttable

presumption of prejudice, but concluded that the presumption of prejudice

resulting from the misconduct was rebutted. Specifically, it stated: “After

reviewing the entire record, including the nature of the purported misconduct and

the surrounding circumstances, we find any presumption of prejudice is rebutted

and there is no substantial likelihood that Juror No. 5 was biased against

Defendants.” In affirming the trial court’s judgment, the California Court of

Appeal pointed to Juror No. 5’s declaration to support its conclusion that the

juror’s omission was innocent, rather than an indicator of bias. It deferred to the

trial court’s finding that Juror No. 5 was credible when she said she “could be

fair.” It also highlighted parts of the trial record to support its conclusion that Juror

No. 5 “harbored no bias” against Petitioners.

Notably, in her declaration, Juror No. 5 admitted to conducting an

“experiment” where she tried to identify passing drivers, challenging an

eyewitness’s testimony that placed Petitioner Bishop at the crime scene, and

betting the other jurors $10 that they could not do the same. The California Court

of Appeal noted that the trial court record contained “considerable evidence” that

Bishop was not driving the car at the time of the drive-by shootings, and that Juror

No. 5’s experiment was aimed at discrediting the strongest evidence the

prosecution had to support Bishop’s placement as the driver. Thus, the court

4 22-55858 23-55270 concluded that there was no reason for Juror No. 5 to “behave in this manner if she

was truly biased against [Petitioners] in the manner they suggest.” Accordingly, the

California Court of Appeal affirmed the trial court’s judgment, and the Supreme

Court of California denied the petitions for review.

Bishop and Harris filed 28 U.S.C. § 2254 petitions separately. The district

court dismissed both federal habeas petitions with prejudice. In the process it

observed that Ninth Circuit precedent found implied bias on the part of a juror

involved “far more egregious” behavior than the instant case. The district court

also denied Petitioners’ certificates of appealability.

Petitioners were later granted certificates of appealability by our court on the

same issue: whether they were deprived of their right to a trial by a fair and

impartial jury because Juror No. 5 intentionally failed to disclose during voir dire

that she was employed by the LAPD in the gang and narcotics unit.

A district court’s denial of a federal habeas petition is reviewed de novo.

Lemke v. Ryan, 719 F.3d 1093, 1096 (9th Cir. 2013). Because these petitions were

filed after April 24, 1996, the deferential standards set forth in the Antiterrorism

and Effective Death Penalty Act (AEDPA) govern review. Id. And because the

Supreme Court of California denied review, the California Court of Appeal’s

decision is the “last reasoned state court decision” addressing Petitioners’ claims.

Id. Under AEDPA, relief can only be granted if that decision was (1) “contrary to,

5 22-55858 23-55270 or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or (2) “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), (d)(2).

The Sixth Amendment guarantees all criminal defendants the right to an

impartial jury. U.S. Const. amend. VI. The bias of even a single juror violates a

defendant’s constitutional right to a fair trial. Dyer v. Calderon, 151 F.3d 970, 973

(9th Cir. 1998) (en banc). We agree with the district court’s conclusion that

Petitioners have failed to establish that the California Court of Appeal decision

regarding the bias of Juror No. 5 was objectively unreasonable.

Petitioners first argue that they demonstrated bias on the part of Juror No. 5

and are entitled to a new trial. That characterization is misleading. Juror No. 5 was

not questioned during voir dire about her responses, which were literally true. The

declaration submitted by Petitioners established that she intentionally withheld

information during voir dire, but “an intentionally dishonest answer [during voir

dire] is not fatal, so long as the falsehood does not bespeak a lack of impartiality.”

Dyer, 151 F.3d at 973; see also McDonough Power Equip., Inc. v. Greenwood, 464

U.S. 548, 556 (1984) (“The motives for concealing information may vary, but only

those reasons that affect a juror’s impartiality can truly be said to affect the fairness

of a trial.”). The California Court of Appeal noted that Juror No. 5’s responses

6 22-55858 23-55270 were “truthful[] and accurate[]” and, by including the name of her employer, she

supplied more information than requested by the questionnaire. That court also

noted it was “incumbent upon the attorneys to resolve any uncertainty in Juror No.

5’s responses by asking follow-up questions” which they failed to do. And as

discussed, there is evidence in the record regarding Juror No. 5’s conduct that can

reasonably be viewed as directly undermining the claim that she was biased against

Petitioners.

Petitioners also contend the trial court erred in failing to conduct an

evidentiary hearing on the issue of juror misconduct. The California Court of

Appeal concluded that the trial court did not abuse its discretion by failing to

conduct an evidentiary hearing because Petitioners had not adequately explained

why an evidentiary hearing was needed. It concluded, noting its assumption of

willful misconduct by the juror, that “there were no material, disputed issues of

facts to resolve at an evidentiary hearing.” Moreover, the record reveals that the

trial court did hold a hearing during which it considered evidence presented by

Petitioners of Juror No. 5’s claimed bias. See Smith v. Phillips, 455 U.S. 209, 215

(1982) (holding that “the remedy for allegations of juror partiality is a hearing in

which the defendant has the opportunity to prove actual bias”).

Allegations of a different form of improper conduct by a juror—

communication with an outside contact—require courts to engage in a “two-step

7 22-55858 23-55270 framework”: first, the court determines whether the contact was “presumptively

prejudicial”; if so, then the burden shifts to “‘the [state] to establish’ the contact

was, in fact, ‘harmless.’” Godoy v. Spearman, 861 F.3d 956, 958 (9th Cir. 2017)

(en banc) (citing Remmer v. United States, 347 U.S. 227, 229 (1954)) (alteration in

original). The government argues that because contact by an outside party is

treated more seriously than other forms of juror misconduct, neither Remmer nor

Godoy are controlling. We need not decide whether third-party contact is more

serious than the juror misconduct alleged here, however, because the California

Court of Appeal assumed that Petitioners established a presumption of prejudice.

That presumption can be rebutted, and the California Court of Appeal concluded

that it had been.

Petitioners cite to our decision in Godoy for the proposition that “it was error

for the court to rely on the very same statement from [the] declaration both to raise

the presumption of prejudice and to rebut it.” Id.at 959. After the Court of Appeal

assumed juror misconduct, it also determined that the trial court was correct to find

that an evidentiary hearing was not necessary because that presumption was

rebutted. But that court did not rely solely on “the very same statement from [the]

declaration” to rebut the presumption of evidence. It considered the declaration as

a whole, as well as additional evidence from the record, to conclude that the

presumption of prejudice had been rebutted. Our decision in Godoy, acknowledged

8 22-55858 23-55270 that possibility. 861 F.3d at 965 n.4. Petitioners have not demonstrated that the

California Court of Appeal unreasonably applied federal law.

Ultimately, even if the state court arrived at what some might think to be an

incorrect result, that result must be upheld so long as ‘fairminded jurists could

disagree on the correctness of the state court’s decision.’” Cannedy v. Adams, 706

F.3d 1148, 1157 (9th Cir. 2013) (quoting Harrington v. Richter, 562 U.S. 86, 101

(2011)). Accordingly, under the “highly deferential” standard set by AEDPA,

Petitioners are not entitled to relief. Harrington, 562 U.S. at 101.

AFFIRMED.

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