Pendergast v. Newland

29 F. App'x 459
CourtCourt of Appeals for the Ninth Circuit
DecidedJanuary 8, 2002
DocketNo. 01-15221; D.C. No. CV 97-01226-GEB
StatusPublished

This text of 29 F. App'x 459 (Pendergast v. Newland) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pendergast v. Newland, 29 F. App'x 459 (9th Cir. 2002).

Opinion

MEMORANDUM1

Michael Pendergast, a California State prisoner, appeals the district court’s denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253. We review the district court’s denial of a habeas petition de novo. Alvarado v. Hill, 252 F.3d 1066, 1068 (9th Cir.2001).

Pendergast’s habeas petition was filed after the April 24, 1996, effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), so we apply that statute to this case. Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Under AEDPA, in order to succeed, Pendergast must demonstrate that the state court adjudication of his claims on their merits “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.” 28 U.S.C. § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Van Tran v. Lindsey, 212 F.3d 1143, 1149 (9th Cir.) cert. denied, 531 U.S. 944, 121 S.Ct. 340, 148 L.Ed.2d 274 (2000). We conclude that Pendergast’s claims fail to reach the standard articulated in Williams, and affirm.

Because the parties are familiar with the facts of this case, we recite here only those facts necessary to explain our decision.

A certificate of appealability was granted on the question whether Pendergast was denied his Sixth Amendment right to an impartial jury because of jury misconduct during voir dire and deliberations. [461]*461He points to four instances of misconduct in his habeas petition: (1) that juror W failed to disclose on his juror questionnaire and during voir dire a prior personal experience in which he misdescribed arson suspects; (2) that juror W discussed the experience with other jurors during their deliberations; (3) that juror W performed a “vanishing point” experiment during deliberations; and (4) that during their deliberations a number of jurors improperly mentioned Pendergast’s failure to testify at trial.

Before discussing each of these claims seriatim, we address the threshold question of whether the juror affidavits submitted by Pendergast as evidence in support of his petition are admissible, and if so for what purpose. Under Rule 606(b), Fed.R.Evid., upon any inquiry into the validity of a verdict “a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict ... or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror.” Similarly, a juror’s post-verdict affidavit is subject under Rule 606(b) to these same restrictions.

Because Pendergast alleges that three of the instances of misconduct constituted an “extraneous influence” on the jury, Tanner v. United States, 483 U.S. 107, 117-18, 107 S.Ct. 2739, 97 L.Ed.2d 90 (1987), we have examined the affidavits for the limited purpose of determining as a threshold matter whether that is so. United States v. Keating, 147 F.3d 895, 902 (9th Cir.1998) (noting “intrajury communications may constitute prejudicial extrinsic evidence sufficient to require a new trial.”).

We find that none of the information provided in the affidavits demonstrates either juror dishonesty during voir dire or that any “extraneous prejudicial information” or “outside influence” was brought to bear on the jury.

I. Juror W’s Alleged Failure to Disclose Prior Experience

Juror W did not disclose, either on his questionnaire or at voir dire, a prior experience when, as a volunteer firefighter, he apparently misdescribed arson suspects by inaccurately recalling their height and weight in reporting to an investigating officer. In Pendergast’s ease, the victim had initially described the second suspect, whom the jury ultimately decided was Pendergast, as a person of average height and medium build when in fact Pendergast was a large man of 300 pounds, standing over six feet tall.2

In order to obtain a new trial on this claim, Pendergast “must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons [462]*462that affect a juror’s impartiality can truly be said to affect the fairness of the trial.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984).

Pendergast offers nothing to suggest that juror W failed to answer honestly any material question asked of him either on the questionnaire or during voir dire. Juror W stated on the questionnaire that he did not know whether “[he], a close friend, or relative” had previously been involved in a criminal case. Counsel did not pursue this equivocal answer during voir dire. Pendergast’s argument that juror W should have volunteered the information at voir dire concerning his misdescription of arson suspects as evidence of bias is without merit. Hard v. Burlington Northern Railroad, 812 F.2d 482, 486 (9th Cir.1987) (“|j']urors must rely on their past personal experiences when hearing a trial and deliberating on a verdict” so long as those experiences are not related to the litigation).

Pendergast’s claim falls far short of the standard required by McDonough and we reject it.

II. Juror W’s Discussion of the Experience

Pendergast objects that juror W’s discussion during deliberations of his previous experience of misidentification constituted extraneous prejudicial information, and was “tantamount to a contrary expert opinion.” This claim is similarly without merit.

A “juror’s past personal experiences may be an appropriate part of the jury’s deliberations,” United States v. Navarro-Garda, 926 F.2d 818

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Related

McDonough Power Equipment, Inc. v. Greenwood
464 U.S. 548 (Supreme Court, 1984)
Tanner v. United States
483 U.S. 107 (Supreme Court, 1987)
Lindh v. Murphy
521 U.S. 320 (Supreme Court, 1997)
Williams v. Taylor
529 U.S. 362 (Supreme Court, 2000)
Thomas J. Hard v. Burlington Northern Railroad
812 F.2d 482 (Ninth Circuit, 1987)
United States v. Katherine Joanne Voigt
877 F.2d 1465 (Tenth Circuit, 1989)
United States v. Hortensia Navarro-Garcia
926 F.2d 818 (Ninth Circuit, 1991)
United States v. Oscar Martinez-Moncivais
14 F.3d 1030 (Fifth Circuit, 1994)
Jesse Javier Alvarado v. Jean Hill
252 F.3d 1066 (Ninth Circuit, 2001)

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Bluebook (online)
29 F. App'x 459, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pendergast-v-newland-ca9-2002.