Brian Parker v. Larry Small

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIAN LEE PARKER, 

Petitioner-Appellant, No. 10-17128

v. D.C. No.

LARRY SMALL, Warden; EDMUND G.  3:09-cv-03989-

BROWN, JR., Attorney General of WHA (PR)

the State of California, OPINION

Respondents-Appellees.



Appeal from the United States District Court

for the Northern District of California

William H. Alsup, District Judge, Presiding

Argued and Submitted

October 11, 2011—San Francisco, California

Filed December 27, 2011

Before: J. Clifford Wallace and Sidney R. Thomas,

Circuit Judges, and William H. Albritton, III,

Senior District Judge.*

Per Curiam Opinion;

Concurrence by Judge Thomas

*The Honorable William H. Albritton, III, Senior District Judge for the

U.S. District Court for Middle Alabama, sitting by designation.

21215

PARKER v. SMALL 21217

COUNSEL

Bradley S. Sandler, Law Office of Bradley S. Sandler, Bev-

erly Hills, California for the petitioner-appellant.

21218 PARKER v. SMALL

David M. Baskind, Deputy Attorney General, San Francisco,

California for the respondent-appellee.

OPINION

PER CURIAM:

The right of an accused to have his case heard before a jury

of his peers is a hallmark of our criminal justice system. The

jury’s verdict is of paramount importance in concluding the

accused’s case. Accordingly, the Supreme Court has permit-

ted trial judges to give extra instructions to deadlocked juries

in the hope of encouraging, but not coercing, a jury verdict.

See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L.

Ed. 528 (1896); Lowenfield v. Phelps, 484 U.S. 231, 108 S.

Ct. 546, 98 L. Ed. 2d 568 (1988); Early v. Packer, 537 U.S.

3, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam). This

case reaches us on a Certificate of Appealability granted by

the United States District Court for the Northern District of

California on the issue of whether the California Court of

Appeal acted contrary to clearly established federal law as

determined by the Supreme Court of the United States when

it held that the supplemental jury charge given at petitioner’s

trial was not coercive.

The petitioner, Brian Lee Parker, was convicted in the

Superior Court of San Mateo County, California, of murder

and other aggravating enhancements. Parker received a sen-

tence of life without parole for the murder conviction and a

sentence of 37 years to run consecutive to the life sentence for

the enhancements. Parker appealed his conviction to the Cali-

fornia Court of Appeal on the ground that the trial judge’s

supplemental instructions to the deadlocked jury were coer-

cive. The Court of Appeal rejected this argument and affirmed

the trial judge, and the California Supreme Court denied

review. Parker then filed a habeas petition in the United States

PARKER v. SMALL 21219

District Court for the Northern District of California pursuant

to 28 U.S.C. § 2254.

The district court denied the writ of habeas corpus. It did,

however, grant a certificate of appealability on Parker’s claim

that the trial judge’s supplemental jury charge was coercive.

We agree with the district court, and we affirm the denial of

the writ of habeas corpus.

This decision requires us to reiterate this Court’s role under

the Antiterrorism and Effective Death Penalty Act

(“AEDPA”) habeas framework, 28 U.S.C. § 2254(d). We sit

here not as a supervisor of state courts, but as enforcer of the

federal AEDPA’s reasonableness standard. Accordingly, we

hold, not that we approve of the instruction given by the Cali-

fornia trial court, or even necessarily that we would have

made the same decision as the California Court of Appeal, if

sitting in its place, but that the California Court of Appeal’s

decision meets the federal review standard set forth by the

AEDPA.

BACKGROUND

At the close of Parker’s six weeks trial, the jury was

instructed on the law and on its role, and began deliberating.

The following rendition of the jury’s deliberation is drawn

from the California Court of Appeal’s decision:

On the third day of deliberations, the jury sent a note

to the court stating, “We can’t come to a decision.”

The court inquired as to whether the jury had agreed

to any of the counts, to which the jury responded,

“no.” The court returned a note to the jury which

read, “Given the complexity and length of this trial-

I believe that you should continue your deliberations

to see if progress can be made in reaching a deci-

sion.” Later that day, the jury sent the court another

note, which read, “Regretfully, we all agree that we

21220 PARKER v. SMALL

will not be able to come to a unanimous decision.”

The court responded, “It does not appear that you

have had time to fully and frankly consider the evi-

dence with open minds and fully and frankly interact

with each other to try and reach verdicts. [¶ ] This is

the process in which you are required by law to

engage. If there is something further that the court

can do to assist you, please advise me. Otherwise,

please continue your deliberations.” Still later the

same day, the jury requested and received further

instructions on the definition of “reasonable doubt.”

Then the jury sent another note to the court indicat-

ing that it was still deadlocked. The court recessed

for the evening and asked the jury to reflect on the

case that evening and to return the following morn-

ing. The jury resumed deliberations the following

day, but again sent the court a note indicating that it

remained deadlocked. The note explained, “We have

one juror who says that because he believes all the

prosecution witnesses lied, he cannot find the defen-

dant guilty-ever. He is unwilling to examine other

evidence. He is wed to the statement the prosecuting

attorney made in closing, ‘If you believe the prose-

cution witnesses, you must find the defendant

guilty.’ He is unable, even though we have asked

many times, to explain to us how the evidence leads

to a not guilty verdict. We are deadlocked.”

In response to this note, the court instructed the jury

verbatim from an instruction upheld in People v.

Moore (2002) 96 Cal.App.4th 1105, 1121:

“’What I am going to do right now, ladies and gen-

tlemen, is I have further instructions and directions

to give you. It has been my experience on more than

one occasion that a jury which initially reported it

was unable to reach a verdict was ultimately able to

arrive at verdicts on one or more of the counts before

PARKER v. SMALL 21221

it. To assist you in your further deliberations, I’m

going to further instruct you as follows:

‘Your goal as jurors should be to reach a fair and

impartial verdict if you are able to do so based solely

on the evidence presented and without regard for the

consequences of your verdict regardless of how long

it takes to do so.

‘It is your duty as jurors to carefully consider, weigh

and evaluate all of the evidence presented at the trial,

to discuss your views regarding the evidence, and to

listen to and consider the views of your fellow

jurors.

‘In the course of your further deliberations, you

should not hesitate to re-examine your own views or

to request your fellow jurors to re-examine theirs.

You should not hesitate to change a view you once

held if you are convinced it is wrong or to suggest

other jurors change their views if you are convinced

they are wrong.

‘Fair and effective jury deliberations require a frank

and forthright exchange of views.

‘As I previously instructed you, each of you must

decide the case for yourself, and you should do so

only after a full and complete consideration of all of

the evidence with your fellow jurors. It is your duty

as jurors to deliberate with the goal of arriving at a

verdict on the charge if you can do so without vio-

lence to your individual judgment.

‘Both the People and the defendant are entitled to the

individual judgment of each juror.

‘As I previously instructed you, you have the abso-

lute discretion to conduct your deliberations in any

21222 PARKER v. SMALL

way you deem appropriate. May I suggest that since

you have not been able to arrive at a verdict using

the methods that you have chosen, that you consider

to change the methods you have been following, at

least temporarily and try new methods.

‘For example, you may wish to consider having dif-

ferent jurors lead the discussions for a period of

time, or you may wish to experiment with reverse

role playing by having those on one side of an issue

present and argue the other side’s position and vice

versa. This might enable you to better understand the

other’s positions.

‘By suggesting you should consider changes in your

methods of deliberations, I want to stress I am not

dictating or instructing you as to how to conduct

your deliberations. I merely find you may find it pro-

ductive to do whatever is necessary to ensure each

juror has a full and fair opportunity to express his or

her views and consider and understand the views of

the other jurors.

‘I also suggest you reread CALJIC instruction 1.00

on page 1 and 1-A, CALJIC instruction 17.40 on

page 40, and CALJIC instruction 17.41 on page 41.

These instructions pertain to your duties as jurors

and make recommendations on how you should

deliberate.

‘The integrity of a trial requires that jurors at all

times during their deliberations conduct themselves

as required by the instructions. CALJIC instruction

1.00 defines the duties of a juror.

‘The decision the jury renders must be based on the

fact[s] and the law. You must determine what facts

have been proved from the evidence received in the

PARKER v. SMALL 21223

trial and not from any other source. A fact is some-

thing proved by the evidence or by stipulation.

‘Second, you must apply the law I state to you to the

facts as you determine them and in this way, arrive

at your verdict.

‘You must accept and follow the law as I state it to

you regardless of whether you agree with the law. If

anything concerning the law said by the attorneys in

their arguments or at any other time during the trial

conflict[s] with my instructions on the law, you must

follow my instructions.

‘CALJIC 17.40 defines the jury’s duty to deliberate.

The decisions you make in this case must be based

on the evidence received in the trial and the instruc-

tions given by the Court. These are the matters this

instruction requires you to discuss for the purpose of

reaching a verdict.

‘CALJIC 17.41 is an instruction which recommends

how jurors should approach their task.

‘You should keep in mind the recommendations this

instruction suggests when considering the additional

instructions, comments and suggestions I have made

in the instructions now presented to you. I hope my

comments and suggestions may have some assis-

tance to you.

‘You’re ordered to continue your deliberations at

this time. If you have other questions, concerns,

requests or any communications you desire to report

to me, please put those in writing on the form my

bailiff has provided you with. Have them signed and

dated by your foreperson and then please notify the

bailiff.’ ”

21224 PARKER v. SMALL

Later that day the jury requested a copy of this

instruction and the next morning it reached a verdict.

The jury also sent a note to the trial judge which

read, “Thank you for having us continue to deliber-

ate.”

People v. Parker, 2008 WL 1952341, *5-7 (Cal. Ct. App.

May 06, 2008).

ANALYSIS

I. Standard of Review

We review the district court’s denial of Parker’s habeas

petition de novo. Yee v. Duncan, 463 F.3d 893, 897 (9th Cir.

2006). Parker’s claim was adjudicated on the merits by the

California Court of Appeal. Therefore, under the Anti-

terrorism and Effective Death Penalty Act (“AEDPA”), we

may not grant his application “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 on

an unreasonable determination of the facts in light of the evi-

dence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d). “Clearly established federal law” means “the gov-

erning legal principle or principles set forth by the Supreme

Court at the time the state court renders its decision. Lockyer

v. Andrade, 538 U.S. 63, 71-72, 123 S. Ct. 1166, 155 L. Ed.

2d 144 (2003). In other words, our inquiry is whether the Cal-

ifornia Court of Appeal reasonably applied the governing

legal principles set forth by the Supreme Court when it deter-

mined that the supplemental instruction was not coercive.

II. The California Court of Appeal’s Decision

[1] Clearly established federal law provides that “[a]ny

criminal defendant . . . being tried by a jury is entitled to the

PARKER v. SMALL 21225

uncoerced verdict of that body.” Lowenfield v. Phelps, 484

U.S. 231, 241 (1988). A supplemental jury charge to encour-

age a deadlocked jury to try to reach a verdict is not coercive

per se. Allen v. United States, 164 U.S. 492 (1896) (approving

the “Allen charge”); Lowenfield, supra, 484 U.S. at 237 (“The

continuing validity of this Court’s observations in Allen are

beyond dispute . . .”). However, when faced with a claim of

jury coercion, a reviewing court must “consider the supple-

mental charge given by the trial court ‘in its context and under

all the circumstances.’ ” Lowenfield, supra, 484 U.S. at 237

(quoting Jenkins v. United States, 380 U.S. 445, 446 (1965)

(per curiam)).

In Lowenfield, the trial judge polled the individual jurors to

learn what each juror thought about his or her ability to reach

a sentencing recommendation in a capital case if given more

time to deliberate. 484 U.S. at 234-35, 108 S. Ct. 546. Only

one juror felt that further deliberation was unnecessary. After

learning that fact, the judge reminded the jury that in the

absence of a unanimous jury recommendation, the court

would impose a sentence of “Life Imprisonment without ben-

efit of Probation, Parole, or Suspension of Sentence.” Id., 108

S. Ct. 546. Thirty minutes later, the jury returned with a ver-

dict sentencing the defendant to death. Id., 108 S. Ct. 546.

[2] In upholding the denial of the habeas writ, the Supreme

Court found that the Lowenfield instruction was less coercive

than the Allen instruction because the judge did not specifi-

cally urge the minority jurors to consider the majority’s view

or the reasonableness of their own view during the supple-

mental charge. Id. at 237-38, 108 S. Ct. 546. The Supreme

Court was similarly unpersuaded by the fact that the trial

judge knew the identity of the single juror who disfavored

continued deliberation because the trial judge did not know

how that individual felt about the merits of the case—which

the Court determined to be “clearly separate” inquiries. Id. at

240, 108 S. Ct. 546. While the Court noted that a short time

lapse between the presentation of supplemental charges and

21226 PARKER v. SMALL

the jury’s return with a verdict suggests coercion, that fact is

just one part of the totality of the circumstances analysis the

Supreme Court requires for determining the presence of jury

coercion. Id., 108 S. Ct. 546. Ultimately, the Lowenfield Court

found that the supplemental charge, even in the context of the

judge’s knowledge about each juror’s desire to continue delib-

erating and the short time lapse between instruction and ver-

dict, was not coercive. Adhering to the Lowenfield Court’s

guidance, we ask (1) if the California Court of Appeal looked

at the totality of the circumstances in determining whether the

instruction given at Parker’s trial was coercive and (2) if its

determination that it was not was objectively reasonable.

[3] It is clear from the record that the California Court of

Appeal considered the Moore instruction and its potentially

coercive effect in context and under all the circumstances.

The California Court of Appeal began by finding that the

Moore instruction had been previously upheld and endorsed

in California. Then the Court considered a line of this Cir-

cuit’s precedent1 for determining whether the trial judge’s

knowledge of a single holdout made the Moore instruction

coercive. After looking at this Circuit’s precedent, the instruc-

tion given at trial, and the circumstances surrounding the pre-

sentation of the instruction, the California Court of Appeal

concluded that the supplemental charge did not coerce the

jury.

[4] As long as the California Court of Appeal reviewed all

the facts, and considered the supplemental charge in its con-

text and under all the circumstances in holding that it was not

coercive, then, in the absence of Supreme Court authority to

the contrary, this Court must give deference to the California

Court of Appeal’s judgment. See Woodford v. Visciotti, 537

1

Although the California Court of Appeal did not cite any Supreme

Court authority in its decision, we ask only whether it reasonably applied

the principles contained in relevant Supreme Court precedent. See Early

v. Packer, supra, 537 U.S. at 8, 123 S. Ct. 362.

PARKER v. SMALL 21227

U.S. 19, 24, 123 S. Ct. 357, 154 L. Ed. 2d 279 (2002) (noting

that the 28 U.S.C. § 2254(d) is a “highly deferential standard

for evaluating state-court rulings, which demands that state-

court decisions be given the benefit of the doubt”) (citations

and internal quotations omitted) (per curiam). We offer no

opinion as to whether we would have reached the same result

had we been reviewing this case directly. We hold only that

the California Court of Appeal’s decision is not contrary to,

and does not involve an unreasonable application of, clearly

established federal law as determined by the Supreme Court

of the United States.

III. Smith v. Curry Distinguished

We also find it appropriate to distinguish the present case

from Smith v. Curry, 580 F.3d 1071(9th Cir. 2009), cert.

denied, ___ U.S. ___, 131 S. Ct. 10, 178 L. Ed. 2d 403

(2010), a case decided by this Circuit with facts somewhat

similar to the present case. In Smith, a divided panel affirmed

the district court’s grant of habeas relief, holding that a Cali-

fornia Court of Appeal decision upholding a trial judge’s

actions was an objectively unreasonable application of gov-

erning legal principles set forth in Lowenfield. Smith is clearly

distinguishable from this case.

In the Smith case, as here, the trial judge knew both the

division of the jurors and the reason for a single holdout

juror’s reluctance to convict. 580 F.3d at 1082. The Smith trial

judge, however, went beyond an Allen charge to revisit select

pieces of evidence from the trial, and to explain that evidence

in a way highly favorable to the prosecution. Id. The judge

did this with knowledge that the evidence he was highlighting

directly responded to the holdout juror’s concerns. In fact, he

replayed for the jury certain interrogations that would support

a conviction, and, without being asked to do so, sent tran-

scripts of those interrogations back to the jury room. Id. The

panel majority said this recasting of evidence by the judge

essentially “substituted the judge for the jury as to the manner

21228 PARKER v. SMALL

and substance of deliberations and thereby denied [the defen-

dant] his constitutional right to the uncoerced verdict of the

jury.” Id. at 1084. Lastly, it took the jury less than one hour

to return with a guilty verdict after being given these supple-

mental instructions by the trial judge. Id. at 1083-84.

Given all of these facts, Smith found that the California

Court of Appeal’s decision that the judge’s presentation of the

evidence was “scrupulously fair,” was objectively unreason-

able, and accordingly, so too was the Court of Appeal’s deci-

sion regarding the lack of jury coercion. Id. at 1084. Smith

concluded that “[a]bsent these factors, we might reach a dif-

ferent conclusion. With them, the case represents the most

coercive instruction of any in the coercion cases we have

reviewed.” Id.

The judge in Parker’s trial did not go nearly as far to

encourage the jury to reach a verdict as the trial judge did in

Smith. Several of the factors that led this court to grant the

writ in Smith are absent from this case. For example, while it

is true that Parker’s trial judge knew the jurors were split, that

one juror was in favor of acquittal, and that that one juror was

concerned about the believability of the prosecution’s wit-

nesses, the judge did not, as did the trial judge in Smith,

directly address that holdout juror’s concerns during the sup-

plemental instruction or attempt to recast the evidence in a

light more favorable to the prosecution. Whether or not the

California Court of Appeal was correct to conclude that there

was no coercion here, its decision did not involve an objec-

tively unreasonable application of the governing principles set

forth in Lowenfield.

CONCLUSION

The facial validity of the Moore instruction is not at issue.

Parker contends that the California Court of Appeal’s decision

was an objectively unreasonable application of clearly estab-

lished federal law as determined by the Supreme Court. For

PARKER v. SMALL 21229

the aforementioned reasons, we hold that it was not. Accord-

ingly, the district court’s denial of Parker’s petition for habeas

corpus is

AFFIRMED.

THOMAS, Circuit Judge, concurring:

Under the circumstances presented by this case, I join my

colleagues in affirming the district court’s denial of Parker’s

petition for habeas corpus. I write separately only to empha-

size that the supplemental jury instruction issued in this case

could have an unconstitutionally coercive effect in other con-

texts, even under the deferential standard of review imposed

by AEDPA. Federal habeas review of the Moore instruction

in future cases, as in this one, will rest on evaluation of the

instruction “in its context and under all the circumstances.”

Lowenfield v. Phelps, 484 U.S. 231, 237 (1988) (quoting Jen-

kins v. United States, 380 U.S. 445, 446 (1965) (per curium))

(internal quotation marks omitted).