Tong Xiong v. Tom Felker

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TONG XIONG, 

Petitioner-Appellant, No. 09-16830

v. D.C. No.

TOM FELKER, Warden; ATTORNEY  2:07-cv-02689-

GENERAL FOR THE STATE OF JAM-CHS

CALIFORNIA, OPINION

Respondents-Appellees.



Appeal from the United States District Court

for the Eastern District of California

John A. Mendez, District Judge, Presiding

Submitted March 12, 2012*

San Francisco, California

Before: John T. Noonan, M. Margaret McKeown, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr., Circuit Judge;

Dissent by Judge Noonan

*The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

6251

6254 XIONG v. FELKER

COUNSEL

Stephanie M. Adraktas, Berkeley, California, for the

petitioner-appellant.

Kamala D. Harris, Michael P. Farrell, Tami M. Krenzin, Ken-

neth N. Sokoler, California Department of Justice, Sacra-

mento, California, for the respondents-appellees.

OPINION

M. SMITH, Circuit Judge:

This case presents three certified issues which we review

under the Anti-terrorism and Effective Death Penalty Act

(AEDPA), 28 U.S.C. § 2254(d): (1) whether Petitioner-

Appellant Tong Xiong’s (Xiong) federal due process rights

were violated when the trial court construed California law to

allow jurors to refuse to discuss their deliberations and

alleged misconduct after trial; (2) whether jury misconduct

involving unsolicited observations of some jurors deprived

XIONG v. FELKER 6255

Xiong of his right to an impartial jury; and (3) whether Xiong

received ineffective assistance of counsel due to counsel’s

elicitation of unfavorable expert testimony on cross-

examination.

Following an initial mistrial, Xiong was convicted of sec-

ond degree murder with aggravating enhancements. Xiong

received a sentence of 40 years to life, with a firearm

enhancement. Xiong appealed his conviction to the California

Court of Appeal on multiple grounds, including insufficient

evidence, ineffective assistance of counsel, and jury miscon-

duct. The Court of Appeal vacated a single sentence on the

firearm enhancement, but affirmed on all other counts,

thereby reducing Xiong’s sentence to 15 years to life. Xiong

subsequently filed a habeas petition in the United States Dis-

trict Court for the Eastern District of California, pursuant to

28 U.S.C. § 2254(d).

Under the facts of this case, as controlled by the Anti-

terrorism and Effective Death Penalty Act (AEPDA), 28

U.S.C. § 2254(d), we may only reverse the state court’s con-

viction if no fair minded jurist could conclude that the peti-

tioner’s clearly established constitutional rights, as established

by the Supreme Court of the United States, were not violated.

We hold that the California Court of Appeal’s decision was

not an unreasonable application of Xiong’s Sixth and Four-

teenth Amendment rights under AEDPA’s stringent stan-

dards, and we affirm the decision of the district court denying

Xiong’s petition for habeas corpus relief.

FACTUAL BACKGROUND AND PRIOR

PROCEEDINGS

Xiong and two co-defendants were charged with murder,

discharging a firearm at an inhabited dwelling, discharging a

firearm from a motor vehicle at a person not in the vehicle,

and discharging a firearm from a motor vehicle. Additional

enhancements were also sought, including several firearm

6256 XIONG v. FELKER

enhancements, a criminal street gang enhancement, and the

special circumstance of intentional first degree murder perpe-

trated by discharging a firearm from a motor vehicle. The

state trial court declared the first trial a mistrial after the jury

was unable to reach a verdict. Xiong’s conviction on retrial

gave rise to the petition for a writ of habeas corpus at issue

in this appeal.

Xiong’s ineffective assistance of counsel claim arises out of

an incident during the cross-examination of one of the prose-

cution’s expert witnesses. During cross-examination, counsel

elicited unfavorable testimony from the prosecution’s gang

expert, to the effect that individuals in a car with a “gang

mentality,” present during the commission of a crime, would

be promoting gang activity solely by their presence. Specifi-

cally, the prosecution’s gang expert testified that while in that

car, “whatever happens and what[ever] they encounter, they

are all down for [it]. That’s how gangsters work.”

Xiong’s due process, fair trial and impartial jury claims

arise out of the jury’s consideration of extrinsic evidence

relating to the testimony of his brother, Fue (Fue). When cal-

led by the prosecution as a hostile witness, Fue testified on

direct examination that he could not remember many answers

to questions about Xiong’s offenses and alleged gang affilia-

tions that he had previously given when interviewed by the

police. He was impeached by the prosecution, which played

a videotape of the police interview in which a clearly lucid

Fue stated that his brother had shot someone. On cross-

examination, Fue testified that he had been “knocked out”

before, had memory problems, and was easily confused. Fue

testified that he could not even recollect testimony he gave

during his direct and cross-examination, and did not remem-

ber reading the transcript of his police interview that morning

during his testimony. Fue also testified that he could not iden-

tify the President of the United States or the Governor of Cali-

fornia.

XIONG v. FELKER 6257

During the course of Fue’s two days of testimony, Jurors

Three, Nine and Ten, in passing, observed Fue talking in a

hallway on his cell phone in a clear and coherent manner. In

a declaration, Juror Nine stated that Fue’s out-of-court demea-

nor was discussed by the jury during its deliberation, but later

corrected the declaration to state that this information was

only discussed after the jury had already found Fue not credi-

ble based on the impeachment evidence presented.

Xiong was ultimately found guilty of all counts, including

second degree murder. The jury at his retrial also found that

Xiong acted as a principal in the firearm offense and that he

committed the offenses for the benefit of a criminal street

gang. However, the jury rejected an additional enhancement

for Xiong’s personal use of a firearm. Ultimately, Xiong was

convicted and sentenced to a term of 15 years to life for the

murder, as well as a consecutive term of 25 years to life for

the firearm enhancement. Sentences on the remaining counts

were stayed, for a total sentence of 40 years to life.

After the jury rendered the verdict and was discharged,

Xiong’s attorney learned of the jurors’ observations of Fue

outside of the courtroom. Xiong’s counsel requested that the

court release juror contact information so that he could inves-

tigate the matter. On October 22, 2004, the trial court found

that Xiong had shown good cause for disclosure of the jurors’

contact information. However, the court indicated that it

would contact the jurors first, and if the jurors did not want

to be heard about the matter, then the law entitled them to

decline to discuss the proceedings. In the following hearing,

the court informed the parties that it had contacted the jurors

in writing about the defense’s request for contact information

and that it had also informed the jurors that if they did not

respond, they would be treated as if they did not wish to be

contacted. Ultimately, ten of the twelve jurors responded,

three of whom ultimately indicated they didn’t want to be

contacted in the future. The remaining seven jurors provided

their contact information.

6258 XIONG v. FELKER

On December 14, 2004 Xiong filed a motion for a new trial

on the ground of jury misconduct. Xiong’s motion included

declarations from Jurors 5, 9 and 10, discussing the jurors’

observations of Fue in the hallway. The court held a hearing

and subsequently denied Xiong’s motion on the basis that

Xiong suffered neither prejudice nor actual bias from the

jury’s exposure to the extrinsic evidence.

Xiong appealed, challenging the sufficiency of the evidence

of his conviction, the trial court’s refusal to require jurors to

discuss their deliberations with the defense upon good cause,

and the jury’s consideration of the extraneous evidence. The

California Court of Appeal reversed the criminal street gang

and firearm use enhancements for insufficient evidence, but

affirmed the judgment on all other grounds. Xiong’s sentence

was reduced to 15 years to life.

Xiong filed a petition for writ of habeas corpus in the dis-

trict court on the grounds of ineffective assistance of counsel

and jury misconduct. A magistrate judge filed findings and

recommendations denying both claims. Subsequently, the dis-

trict court adopted the magistrate judge’s findings and recom-

mendations in their entirety. Xiong timely appealed.

STANDARD OF REVIEW

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

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

2006). Under AEDPA, we may not grant his petition “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 evidence presented in the State court proceeding.”

28 U.S.C. § 2254(d) (emphasis added); see also Penry v.

Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor,

529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d

XIONG v. FELKER 6259

1223, 1229 (9th Cir. 2001). “Clearly established federal law”

means “the governing legal principle or principles set forth by

the Supreme Court at the time the state court renders its deci-

sion.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003).

Under AEDPA’s first clause regarding questions of law

under section 2254(d)(1), the “contrary to” and “unreasonable

application” analyses are distinct. 28 U.S.C. § 2254(d)(1). We

may grant a federal writ of habeas corpus under the “contrary

to” clause only if the state court arrives at a conclusion oppo-

site to that reached by the Supreme Court on a question of law

or if the state court decides the case differently than the

Supreme Court on a set of “materially indistinguishable”

facts. Williams, 529 U.S. at 410. We may grant relief under

the “unreasonable application” clause only if the state court

correctly identifies the governing legal principle but unrea-

sonably applies it to the particular facts of the case. Id. We

look to the state court’s “decision, as opposed to its reason-

ing,” to determine whether it was an “unreasonable applica-

tion” of clearly established Supreme Court precedent. Merced

v. McGrath, 426 F.3d 1076, 1081 (9th Cir. 2005) (emphasis

added). It is not enough for us to determine, in our indepen-

dent judgment, that the state court’s decision was incorrect, or

even erroneous. Williams, 529 U.S. at 410. Our inquiry is

strictly limited to whether the state court’s application of

clearly established Supreme Court precedent in its final deci-

sion was “objectively unreasonable.” Id.

AEDPA’s second clause governs basic factual determina-

tions arrived at in light of all the evidence in state court pro-

ceedings. 22 U.S.C. § 2254(d). We may only grant relief for

factual findings that are “objectively unreasonable.” Taylor v.

Maddox, 366 F.3d 992, 1007-08 (9th Cir. 2004). Factual find-

ings are objectively unreasonable if they are unsupported by

sufficient evidence in the state court record. Id. However,

mixed questions of law and fact, including the prejudice

determinations in jury misconduct and ineffective assistance

of counsel petitions, are generally reviewed under section

6260 XIONG v. FELKER

2254(d)(1), not section 2254(d)(2). See Caliendo v. Warden of

Cal. Men’s Colony, 365 F.3d 691, 693-94 (9th Cir. 2004) (en

banc) (determination of prejudice in juror misconduct case

was mixed question of law and fact), Strickland, 466 U.S. at

698 (prejudice component of ineffective assistance claim was

mixed question of law and fact); see also Davis v. Woodford,

384 F.3d 628, 637 (9th Cir. 2004) (mixed questions of law are

evaluated under § 2254(d)(1)).

ANALYSIS

I. Jury Misconduct Claim

There is no dispute that juror misconduct occurred when

some jurors considered, and later discussed, Fue’s conduct in

the courtroom hallway. The issues here are (1) whether

Xiong’s clearly established right to a fair trial was violated

when the trial court refused to allow his attorney to directly

contact jurors regarding the juror misconduct after those

jurors indicated they were unwilling to discuss the case; and

(2) whether Xiong’s clearly established right to a fair trial and

impartial jury was violated by the jury’s consideration of

extrinsic evidence. We hold that the California Court of

Appeal did not unreasonably apply the relevant legal princi-

ples set forth by the Supreme Court under the Sixth and Four-

teenth Amendments when it denied Xiong’s requests to

investigate the juror misconduct, and when it found no preju-

dice to Xiong.

A. The Scope of the Jury Misconduct Inquiry did not

Violate Xiong’s Right to Due Process.

Xiong contends that the trial court deprived him of his due

process rights by informing the jurors after trial that they were

not obligated to speak with the defense in violation of his

right to a fair trial and an impartial jury. Specifically, Xiong

argues that the trial court erred by allowing jurors to refuse to

discuss their deliberations once he had established good cause

XIONG v. FELKER 6261

for the release of their contact information pursuant to Cali-

fornia Code of Civil Procedure sections 206 and 237.

[1] First, we hold that Xiong’s claim regarding the post-

trial rights of jurors is procedurally defaulted.1 Under the pro-

cedural default doctrine, federal courts will not review a ques-

tion of federal law previously decided by a state court if the

state court’s decision rests on a state law ground that is inde-

pendent of federal law and adequate to support judgement.

Coleman v. Thompson, 501 U.S. 722, 729 (1991). A state pro-

cedural default is independent unless it appears “to rest pri-

marily on federal law or appears to be interwoven with federal

law.” Id. at 734. A state procedural default is adequate if it is

“ ‘firmly established and regularly followed’ by the time as of

which it is to be applied.” Ford v. Georgia, 498 U.S. 411, 424

(1991). The petitioner may only avoid default if he can estab-

lish cause and prejudice, or that failure to consider the claim

will result in a fundamental miscarriage of justice. Coleman,

501 U.S. at 750.

[2] Although he did not object at trial, Xiong raised his

claim that the trial court deprived him of due process by

informing the former jurors that they were not required to

speak with the defense during its post-verdict investigation to

the California Supreme Court. The California Supreme Court

denied his petition without comment. “Looking through” to

the last reasoned decision by a state court, the California

Court of Appeal held, in part, that Xiong had forfeited his

claim by failing to object at trial. Ylst v. Nunnemaker, 501

U.S. 797, 804, n.3 (1991). Accordingly, because Xiong failed

to object to the court’s post-trial investigation of the juror

1

Even if Xiong’s claim were not procedurally defaulted, it would be

barred by the lack of controlling, clearly established Supreme Court

Authority, under § 2254(d) and under the “new rule” doctrine of Teague

v. Lane. 498 U.S. 288, 299-301, 310 (1989) (prohibiting the use of a “new

rule” of constitutional law, or even a settled rule applied in a novel setting,

to apply retroactively in habeas corpus proceedings to invalidate a final

state criminal conviction).

6262 XIONG v. FELKER

misconduct at trial, his forfeiture under California law consti-

tutes a procedural default. See, e.g., Rich v. Calderon, 187

F.3d 1064, 1070 (9th Cir. 1999).

[3] Second, Xiong’s claim that the trial court violated his

constitutional rights by failing to require that all the former

jurors be questioned under oath also fails. “Habeas claims not

raised in the petition before the district court are not cogniza-

ble on appeal.” Belgarde v. Montana, 123 F.3d 1210, 1216

(9th Cir. 1997) (internal quotation marks omitted). In his

habeas petition, Xiong did not claim that the Constitution

entitled him to require the former jurors to testify, and the

District Court never adjudicated such a claim. Xiong only

claimed that the trial court deprived him of due process by

prohibiting his attorneys from speaking to former jurors who

did not want to discuss the case. Xiong did not raise this

ground in his petition for habeas relief, nor has it been certi-

fied on appeal. Accordingly, Xiong’s claim that the trial court

violated his rights by failing to require that all former jurors

be questioned under oath is not cognizable here for lack of

certification. Belgarde, 123 F.3d at 1216.

B. The Jury’s Consideration of Extrinsic Evidence did

not Prejudice Xiong.

[4] Extraneous influences on a jury can, under some cir-

cumstances, require the reversal of a conviction. Parker v.

Gladden, 385 U.S. 363, 364-65 (1966). Indeed, “evidence

developed against a defendant must come from the witness

stand.” Fields v. Brown, 503 F.3d 755, 779 (9th Cir. 2007);

see also Turner v. Louisiana, 379 U.S. 466, 472 (1965) (hold-

ing that the requirement that the jury’s verdict must be based

on the evidence developed at trial “goes to the fundamental

integrity of all that is embraced in the constitutional concept

of trial by jury”). Generally speaking, “[p]rivate communica-

tions, possibly prejudicial, between jurors and third persons,

or witnesses, or the officer in charge, are absolutely forbid-

den, and invalidate the verdict, at least unless their harmless-

XIONG v. FELKER 6263

ness is made to appear.” Mattox v. United States, 146 U.S.

140, 142 (1892). However, this does not mean that all extra-

neous information is per se prejudicial; certain extrinsic con-

tact with witnesses, such as contact involved with “passing

[jurors] in the hall,” may ultimately be found to be de minimis

and not prejudicial. See Caliendo, 365 F.3d at 696 (citing

Gonzales v. Beto, 405 U.S. 1052 (1972) (memorandum dis-

sent and concurrence)). The presumption of prejudice that

arises from juror misconduct, although strong, is not conclu-

sive; “the burden rests heavily upon the Government to estab-

lish, after notice to and hearing of the defendant, that such

contact with the juror was harmless to the defendant.” Rem-

mer v. United States, 347 U.S. 227, 228-29 (1954) (applying

Mattox); see also Caliendo, 365 F.3d at 696.

Xiong argues that he was deprived of his right to a fair trial

and an impartial jury because of juror misconduct involving

the consideration of extrinsic evidence pertaining to Fue’s tes-

timony. We disagree. To the extent that controlling constitu-

tional authority exists pertaining to this unique set of facts, we

are compelled under the narrow scope of AEDPA to hold that

the California Court of Appeal did not unreasonably apply

clearly established Supreme Court precedent in violation of

Xiong’s Sixth and Fourteenth Amendment rights.

[5] At the outset, critical factual distinctions exist between

the Supreme Court jurisprudence regarding juror misconduct

and the misconduct at issue in this case. In Mattox, the

Supreme Court held that the trial court committed reversible

error by refusing to consider affidavits from the jury where

the bailiff had previously remarked to the jury that the victim

was the third person that the defendant killed and that the

defendant had been tried for his life once before. 146 U.S. at

141-42. Moreover, in Mattox, the jury also considered an out-

side newspaper article stating that the evidence against the

defendant was very strong, and that he would be lucky if he

was not convicted. Id. at 150-52. In Remmer, the Supreme

Court held, citing Mattox, that the trial court’s denial of a

6264 XIONG v. FELKER

motion for new trial was erroneous where someone told the

foreman of the jury that he “could profit by bringing in a ver-

dict favorable” to the defendant in a tax evasion case, an affir-

mative effort to influence the jury. 347 U.S. at 228. Turner

involved two deputy sheriffs who provided key testimony

while also overseeing the jury during sequestration, during

which time they built up a rapport with the jurors resulting in

“a continuous and intimate association” with the jury through-

out the trial. 379 U.S. at 473-74.2 In Parker, the Court granted

habeas relief after the bailiff told one of the jurors that the

defendant was guilty and a “wicked fellow,” and on another

occasion told them that if anything were wrong with a guilty

verdict, the Supreme Court would correct it. 385 U.S. at 363-

66. In contrast, here, the nature and magnitude of the interfer-

ence with the jury’s deliberations were very different; the

misconduct consisted of three jurors’ brief discussions about

unsolicited observations they had made of a witness, unbe-

knownst to him, in the normal course of their activities at the

courthouse. Because the Sixth Amendment cases all involved

much more significant, and in some cases, deliberate interfer-

ence with the deliberation process, the nature of the miscon-

duct here is factually distinguishable from clearly established

Sixth Amendment Supreme Court precedent.

[6] Nonetheless, even if Remmer, Mattox, Turner and Par-

ker did control, the Court of Appeal did not unreasonably

apply Supreme Court precedent. The inquiry into a jury’s con-

sideration of extrinsic evidence does not end at whether mis-

conduct occurred; upon a finding of misconduct, a rebuttable

presumption of prejudice applies. Remmer, 347 U.S. at 228-

29. The dissent mistakenly interprets Turner as holding that

any such misconduct is per se prejudicial, but this is not the

case. Mattox and Remmer teach that, although it carries a

2

Sitting en banc, we have already once distinguished Turner from other

clearly established Supreme Court precedent involving juror misconduct

on the basis that the misconduct at issue in Turner was both “continuous

[and] intimate.” Caliendo, 365 F.3d at 695 n.2.

XIONG v. FELKER 6265

heavy burden, the Government may overcome the presump-

tion of prejudice with proof that the jury’s consideration of

extrinsic evidence was harmless. See Mattox, 146 U.S. at 142;

Remmer, 347 U.S. at 228-29.

Our dissenting colleague seeks to circumvent Mattox’s and

Remmer’s limitation on the presumption of prejudice by con-

tending that Turner, having been decided later in time, con-

trols. Again, the dissent’s selective logic is misguided. The

Court, in Turner, confined its analysis to extreme cases of

juror misconduct: “We deal here not with a brief encounter,

but with a continuous and intimate association throughout a

three-day trial–an association which gave these witnesses an

opportunity . . . to renew old friendships and make new

acquaintances among the members of the jury.” 379 U.S. at

473 (emphasis). Nowhere in Turner does the Court even men-

tion, let alone overrule, Mattox or Remmer. 379 U.S. 466. The

Court’s finding that the conduct was prejudicial was based

fundamentally upon the extent and nature of the contact

between the witnesses and jurors, and the fact that the Gov-

ernment proffered “nothing to show what the two deputies

discussed in their conversations with the jurors.” Id. at 473.

Thus, the “inherent” prejudice that arose in Turner was not

grounded in the fact of the misconduct per se, as our col-

league contends, but the “continuous” and “intimate” nature

of the association between the jurors and the prosecution wit-

nesses. Id. (“And even if it could be assumed that the deputies

never did discuss the case directly with any members of the

jury, it would be blinking reality not to recognize the extreme

prejudice inherent in this continual association throughout

the trial between the jurors and these two key witnesses for

the prosecution.”) (emphasis added).

The holding in Caliendo, our court’s most recent consider-

ation of a petition for habeas relief due to juror misconduct,

further exposes the dissent’s misguided application of Turner,

Mattox, and Remmer. 365 F.3d at 695-696. Sitting en banc, in

Caliendo, we relied upon Mattox and Remmer as establishing

6266 XIONG v. FELKER

the widely accepted bright-line rule that a finding of jury mis-

conduct gives rise to a presumption of prejudice that may only

be rebutted with strong, contrary proof of harmlessness. 365

F.3d at 696 (“We and other circuits have held that Mattox

established a bright-line rule: Any unauthorized communica-

tion between a juror and a witness or interested party is pre-

sumptively prejudicial, but the government may overcome the

presumption by making a strong contrary showing.”) (internal

citations omitted). Moreover, in Caliendo, we distinguished

Turner, as we do here, on the grounds that the particular

nature of misconduct at issue in Caliendo was “neither contin-

uous nor intimate,” as it was in Turner. Id. at 695 n.2. Our

analysis in Caliendo makes clear that the dissent’s attempt to

rely upon Turner, and to ignore Remmer and Mattox, fatally

distorts this long-established bright-line rule.

The Government conceded that misconduct occurred, and

thus, a presumption of prejudice arose. The question before us

now is whether the California Court of Appeal unreasonably

applied that presumption of prejudice in finding that the mis-

conduct was harmless. We hold that it did not. The Court of

Appeal explained, in its opinion, that Xiong was prejudiced if

(1) “the extraneous material was ‘inherently and substantially

likely to have influenced the juror,’ ” or (2) given “the nature

of the misconduct and the surrounding circumstances . . . it is

substantially likely that the juror was actually biased against

the defendant.” In denying Xiong’s motion for a new trial

based upon jury misconduct, the Court of Appeal reasoned

that the extraneous information was not likely, objectively, to

have influenced the jury’s verdict because the “observations

of Fue outside the courtroom during trial were merely cumu-

lative of what the jury witnessed on the videotaped inter-

view.” In fact, Fue’s credibility regarding his inability to

recall prior testimony had already been impeached at trial, to

the point where it had been deemed “comical.” Ultimately,

the Court of Appeal found that any juror misconduct was

harmless because, based upon the objective facts in the

record, the extraneous evidence was merely duplicative of the

XIONG v. FELKER 6267

jury’s findings on Fue’s credibility. Moreover, the Court of

Appeal rejected Xiong’s argument that the jury’s observations

of Fue outside the court bolstered the reliability of his incrimi-

natory statements because the jury rejected the most incrimi-

natory of Fue’s out of court statements—that Xiong had

admitted that he shot the victim—in rejecting the personal use

of a firearm enhancement.

[7] The Court of Appeal clearly undertook to determine

whether the presumed prejudice to Xiong from the jury mis-

conduct was harmless; it reviewed the entirety of the record

and made a reasonable factual determination that Xiong was

not prejudiced either by the extrinsic evidence’s influence or

actual bias. Accordingly, even if Remmer, Mattox, Turner and

Parker controlled, the Court of Appeal did not unreasonably

apply the Court’s required prejudice presumption.

II. Ineffective Assistance of Counsel Claim

[8] To prove ineffective assistance of counsel, a defendant

must show that considering all the circumstances, counsel’s

performance was so poor that it fell below an objective stan-

dard of reasonableness, and has prejudiced the defendant. Str-

ickland v. Washington, 466 U.S. 668, 688-89 (1984).

Reviewing courts apply a “strong presumption” that the coun-

sel’s performance was within the “wide range of reasonable

professional assistance.” Id. at 689. The petitioner must show

that the counsel’s errors were so serious that “counsel was not

functioning as the ‘counsel’ guaranteed the defendant by the

Sixth Amendment.” Id. at 687. And beyond incompetence, the

petitioner must show prejudice. Id. at 692. Prejudice is only

established if the petitioner shows a reasonable likelihood

that, but for counsel’s unprofessional errors, the result would

have been different. Harrington v. Richter, 131 S. Ct. 770

(2011). “The likelihood of a different result must be substan-

tial, not just conceivable.” Id. at 792. The Court of Appeal did

not cite Strickland or explicitly apply the two part analysis

from that case. Nevertheless, the Court of Appeal’s adjudica-

6268 XIONG v. FELKER

tion of Xiong’s ineffective assistance of counsel claim did not

“result[ ] in a decision that was contrary to, or involved an

unreasonable application of” Strickland. See Early v. Packer,

537 U.S. 3, 8 (2002) (holding that state courts are not required

to cite or even be aware of controlling Supreme Court prece-

dent, “so long as neither the reasoning nor the result of the

state-court decision contradicts [Supreme Court precedent]”).

Therefore, under AEDPA, we must affirm.

[9] During cross-examination, defense counsel asked the

gang expert, based upon a hypothetical, whether he assumed

that gang members in the car were acting in concert by their

mere presence. At the Court of Appeal, Xiong argued that his

attorney rendered ineffective assistance by eliciting the gang

expert’s opinion that gang members who are present at a

crime scene necessarily intend to aid and abet other gang

members. The Court of Appeal dismissed this claim on the

merits, reasoning that Xiong had mischaracterized the gang

expert’s testimony to be something it was not, and further,

that the expert spoke within the confines of California’s pro-

hibition on gang expert testimony about whether a defendant

harbored specific intent. Xiong’s counsel took a calculated

risk in an attempt to elicit testimony that he was ultimately

unable to elicit; instead he elicited cross-examination testi-

mony from the prosecution’s expert that was unfavorable.

Under Strickland, this is not enough to demonstrate the requi-

site incompetence, nor prejudice, to trigger § 2254(d) protec-

tion. A “fairminded jurist” could conclude that the cross-

examination did not constitute ineffective assistance. Accord-

ingly, we affirm the district court and deny Xiong’s petition

for of habeas corpus relief for ineffective assistance of coun-

sel.

CONCLUSION

We hold that the California Court of Appeal’s decision

denying Xiong’s motion for a new trial was not an objectively

unreasonable application of clearly established federal law, as

XIONG v. FELKER 6269

determined by the Supreme Court. For the foregoing reasons,

the district court’s denial of Xiong’s petition for habeas cor-

pus is AFFIRMED.

NOONAN, Circuit Judge, dissenting:

Reversing a conviction of murder that had been affirmed by

the Supreme Court of Louisiana, Justice Stewart writing for

eight of the nine justices, stated:

The question [before the Court] goes to the nature of

the jury trial which the Fourteenth Amendment com-

mands when trial by jury is what the State has pur-

ported to accord.

Turner v. Louisiana, 379 U.S. 466, 471 (1966).

Justice Stewart turned to an earlier case involving jury mis-

conduct and stated: “What the Court said in that case is con-

trolling here[.]” Id. Justice Stewart went on to repeat the

earlier case’s statement that “[a juror’s] verdict must be based

upon the evidence developed at the trial.” Id. at 472 (quoting

Irvin v. Dowd, 366 U.S. 717, 722 (1961)).

Justice Stewart continued:

The requirement that a jury’s verdict “must be based

upon the evidence developed at the trial” goes to the

fundamental integrity of all that is embraced in the

constitutional concept of trial by jury . . . .

In the constitutional sense, trial by jury in a crimi-

nal case necessarily implies at the very least that the

“evidence developed” against a defendant shall come

from the witness stand in a public courtroom where

there is full judicial protection of the defendant’s

6270 XIONG v. FELKER

right of confrontation, of cross-examination, and of

counsel. What happened in this case operated to sub-

vert these basic guarantees of trial by jury.

Turner, 379 U.S. at 472-73.

Contamination of the jury by a particular source or to a par-

ticular degree is not the focus of the Supreme Court. Justice

Stewart states the evidence before the jury must come from

the witness stand in a public courtroom. No room is left for

a dribble of relevant information snatched from the corridors

of the court by undisciplined jurors.

At issue in our case was the credibility of Fue Xiong, the

younger brother of the defendant. Fue had given a videotaped

statement to the police identifying the defendant as the

shooter. At the time of this statement, Fue was fifteen years

old.

At his brother’s trial six years later, Fue was treated as a

hostile witness by the prosecution. He denied that his brother

had confessed. Fue testified that he had memory problems

arising from occasions where he had been knocked out. He

testified that his memory deteriorated and he became con-

fused when stressed. A key question for the jury was whether

it should believe Fue on the videotape or on the witness stand.

Several members of the jury made observations relevant to

the credibility of Fue. This evidence did not come from the

witness stand. It came from the corridors of the court.

Juror Nine observed Fue in a hallway speaking on his cell

phone several times over the two days during which he was

a witness at the trial. Fue did not appear to be confused to

Juror Nine. Fue “had his act together.” Juror Nine stated that

Fue’s out-of-court demeanor was discussed by the jury during

its deliberation. At a subsequent hearing, Juror Nine repudi-

ated his statement that he could hear what Fue said on the cell

XIONG v. FELKER 6271

phone. He did not deny that he observed Fue. Juror Nine now

declared that any reference in the jury room to observation of

Fue on the cell phone came after the jury had decided that

Fue’s testimony was not credible.

Juror Ten and Juror Five also reported that they had

observed Fue in out-of-court cell phone conversation.

On the basis of the three jurors’ declarations, the defense

moved for a new trial. After a hearing, the trial court stated:

“Now, the misconduct in this case that I find is that the jurors

discussed those phone conversations in the jury deliberation

room.” There was a presumption of prejudice. The prosecu-

tion had the burden of rebutting it.

The trial court went on to determine whether the prosecu-

tion had met its burden. The court first ruled that “the extrane-

ous information was not so prejudicial in and of itself as to

cause inherent bias.”

The trial court then reviewed inconsistencies in Fue’s

courtroom testimony. In contrast, the trial court stated, “In

that videotaped statement he was clear on all the essential

details.” The trial court then ruled that looking at the totality

of the evidence there was no substantial likelihood of actual

bias relative to any of the jurors.”

On direct appeal, the California Court of Appeal for the

Third Appellate District held:

Our review of the record, here, leads us to concur

with the trial court’s determination that defendant

suffered no prejudice from the misconduct in ques-

tion, either objectively or based on actual juror bias.

We agree with the trial court that, objectively, the

extraneous information was not likely to have influ-

enced the jury. We accept the trial court’s observa-

6272 XIONG v. FELKER

tion that Fue was not a credible witness and that his

memory lapses while testifying were “comical,” as

the transcript of Fue’s testimony supports the trial

court’s assessment. The court contrasted Fue’s

demeanor in court with his videotaped interview, in

which Fue was “clear on all the essential details.”

Although the videotaped interview is not before this

court, [footnote omitted] the transcript of that inter-

view confirms that Fue had no difficulty with recall,

in marked contrast to his responses to questions at

trial. Thus, observations of Fue outside the court-

room during trial were merely cumulative of what

the jury witnessed on the videotaped interview and

were unlikely to have influenced the jury.

People v. Xiong, No. C048798, 2006 WL 3033192, at *14

(Cal. Ct. App. Oct. 26, 2006).

Our review is of the opinion of the California Court of

Appeal, the last reasoned judgment of the state courts.

The California appellate court confirmed what the trial

court had found: Xiong’s jury had before it “extraneous infor-

mation” not presented to the jury in the trial. Following the

trial court, the California Court of Appeal held that “objec-

tively” the extraneous information was “not likely to have

influenced the jury.” Id. The California Court of Appeal went

on to find Fue not to be a credible witness.

The majority deprive Turner of its force by citing Remmer,

a decision of the Supreme Court predating Turner and stating

in dicta that the presumption of jury misconduct is rebuttable.

See maj. op. at 6264-65. The majority’s use of precedent turns

the dicta and decisions of the Supreme Court upside down.

The earlier dicta in a case, moving towards the ultimate prohi-

bition of outside influence, are now turned into a gloss on the

definitive resolution of the issue. It’s an odd way to read con-

trolling authority.

XIONG v. FELKER 6273

Nothing in Turner gives approval to a court determining

that information received by the jury outside the trial is per-

missible if the information is not too prejudicial. Nothing in

Turner indicates that the jury’s verdict may be upheld by the

trial judge or the appellate court deciding the credibility of the

witness as to whom the jury has information not obtained at

the trial. To permit a state appellate court to validate a trial in

this informal and intrusive way is to impair the integrity of the

jury trial.

The state asserts that defendant’s claim is barred “because

there is no Supreme Court authority addressing whether and

when the jury’s discussion of a juror’s observations outside

the courtroom violates a defendant’s right to due process or

any other constitutional right.” Inconsistently, the state moves

on to address Turner and quotes from its holding that the

jury’s verdict “must be based on the evidence developed at

the trial.” The state does not deal with this requirement but

seeks to distinguish Turner, saying Turner addressed external

contact made with the jury, not the misconduct of the jurors

themselves. Therefore, the state argues, Turner does not

“squarely” face the issue in this case. But it is the state that

does not squarely face Turner.

Turner holds that a jury must decide a case on the evidence

presented to the jury in the courtroom. Any other source of

information is excluded by what a jury trial demands. The

observations of Fue and the discussion of those observations

by the jury destroyed its ability to act as a jury. Contaminated,

“the nature” of a trial by jury disappeared beyond retrieval,

repair, or excuse. Under binding federal constitutional law as

determined by the United States Supreme Court Xiong is enti-

tled to a new trial before uncontaminated jurors.

The opinion of the court in our case cites four cases in

which the United States Supreme Court found jury miscon-

duct requiring a new trial. The opinion distinguishes these

cases by saying that each involved outside influences on the

6274 XIONG v. FELKER

jury. That difference is correct. It is not a difference that the

Supreme Court drew. It is a distinction defying the holding of

Turner as to what constitutes the integrity of the jury.

The opinion of the court in our case copies the error of the

California Court of Appeal in weighing the effect of the con-

tamination and finding the juror misconduct harmless. That

jurors themselves made out-of-court observations and dis-

cussed these observations with their fellow jurors was at least

as corrosive of the process as the comments of a bailiff or a

guard to ensure the integrity of the jury’s deliberations. Tur-

ner drew a clear and bright line. California crossed it.