Appendix — Early v. Packer

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CMR VULTT,

a) FILED

011765 MAY 28 2002

No.

IN THE SUPREME COURT OF THE UNITED STATES

RICHARD E. EARLY, Warden, ATTORNEY GENERAL OF

THE STATE OF CALIFORNIA, Petitioners,

Vv.

WILLIAM PACKER, Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

APPENDIX TO PETITION FOR WRIT OF CERTIORARI

BILL LOCKYER

Attorney General of the State of California

MANUEL M. MEDEIROS

State Solicitor General

ROBERT R. ANDERSON

Chief Assistant Attorney General

PAMELA C. HAMANAKA

Senior Assistant Attorney General

KEITH H. BORJON

Supervising Deputy Attorney General

KENNETH C. BYRNE

Supervising Deputy Attorney General

KENNETH N. SOKOLER

Deputy Attorney General

Counsel of \ecord

300 South Spring Street

Los Angeles, CA 90013

Telephone: (213) 620-6064

Fax: (213) 897-2808

Counsel for Petitioners

| 2), >

INDEX TO APPENDICES

APPENDIX A SECOND AMENDED OPINION OF THE

UNITED STATES COURT OF APPEALS

APPENDIX B FIRST AMENDED OPINION OF THE

UNITED STATES COURT OF APPEALS

APPENT OPINION OF THE UNITED STATES

COURT OF APPEALS

APPENDIX D JUDGMENT OF THE UNITED STATES

DISTRICT COURT

APPENDIX E ORDER OF THE UNITED STATES

DISTRICT COURT ADOPTING THE

REPORT AND RECOMMENDATION

OF THE MAGISTRATE JUDGE

APPENDIX F AMENDED REPORT AND

RECOMMENDATION OF THE UNITED

STATES MAGISTRATE JUDGE

APPENDIX G CALIFORNIA SUPREME COURT

ORDER DENYING PETITION FOR

REVIEW

APPENDIX H CALIFORNIA COURT OF APPEAL

OPINION

APPENDIX A

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM PACKER, No. 00-57051

\ Petitioner-Appellant, D.C. No.

v. CV 96-04957 HLH

DON HILL, Warden; ATTORNEY ORDER GRANTING

GENERAL OF THE STATE OF REQUEST FOR

CALIFORNIA, CLARIFICATION OF

REMAND ORDER AND

Respondents-Appellees. AMENDING OPINION

Appeal from the United States District Court

for the Central District of California

Harry L. Hupp, District Judge, Presiding

Argued and Submitted

November 8, 2001 — Pasadena, California

: Sp ane Filed January 15, 2002

Sgt marl <2 Amended February 27, 2002

. . ge Second Amendment May 6, 2002

Before: Harry Pregerson, Stephen Reinhardt,

and Barry G. Silverman, Circuit Judges.

Opinion by Judge Pregerson;

Dissent by Judge Silverman

SUMMARY

Criminal Law and Procedure/Due Process

The court of appeals affirmed a judgment of the district court in

part, reversed in part, and remanded. The court held that a state court's

actions in telling a known lone-holdout juror who asks to be dismissed

that deliberations would have to be started all over with another person

if she left; reading a letter written by the jury foreman in open court that

describes the juror as a person who is unable to understand the rules and

to reason; and indicating that the jury should continue deliberating if it

would "help" or allow the jury to “progress” after learning that the

breakdown was 11 to one, without ever providing a counter-balancing

instruction that the juror should not abandon her conscientiously held

views, are unduly coercive and violative of a defendant's due process

rights.

Appellant William Packer was charged with several crimes,

including second degree murder and attempted murder, and tried in

California state court. On May 12, 1992, after over 20 hours of

deliberation, and after the jury had returned sealed verdict forms to the

court on all but the murder and attempted murder charges, juror Eve

Radcliff wrote the judge, asking to be dismissed due to health problems.

The judge encouraged Radcliff to remain on the jury, telling her that

deliberations would have to be started all over with another person if she

left. The next day, Ma; 13, the state court read a letter written by jury

foreman Richard Wyke in open court, in which Wyke described Radcliff

as a juror who was unable to understand the rules and to reason. The

state court then asked about the jury break down, and, learning that the

breakdown was 11 to one, indicated that the jury should continue

deliberating if it would "help" or allow the jury to "progress," without

ever providing a counterbalancing instruction that Radcliff should not

abandon her conscientiously held views. During a May 15 conference,

the state court learned that Radcliff felt that she had suffered a “public

beating” during the May 13 meeting and was feeling pressured by the

other members of the jury to join the majority, but the state court again

failed to give a counter-balancing instruction that Radcliff should not

surrender her conscientiously held beliefs. The jury convicted Packer of

murder, but acquitted him on 10 other counts.

Packer appealed to the California Court of Appeal, which, in an

unpublished opinion, simply mentioned three particular incidents in its

analysis and considered each of them separately, finding no reversible

error in any of the following: (1) the state court's statement to Radcliff,

at the May 12 conference in chambers, that deliberations would have to

begin anew if Radcliff were excused; (2) the state court's failure to

further clarify the law in light of the instructions given on May 12; or (3)

the state court's urging the jury to consider the matter further with the

view to reaching an agreement on May 13. The California Supreme

Court denied Packer's habeas petition without comment.

The federal district court denied Packer's federal habeas corpus

petition, but granted a certificate of appealability on claims including

that the state trial judge violated his Fourteenth Amendment right to due

process by coercing the jury into rendering a guilty verdict.

Packer appealed.

[1] A federal court may grant a writ of habeas corpus to a state

prisoner only if the state court's rulings 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 were based on an unreasonable determination of the

facts in light of the evidence presented in the state courts. [2] Coercive

statements from the judge to the jury result in a denial of the defendant's

right to a fair trial and an impartial jury. The applicable legal principles

prohibiting juror coercion and the framework of the totality of

circumstances test were clearly established.

[3] Because the California Supreme Court denied Packer’s habeas

petition without comment, the last reasoned decision of a state court had

to be considered as the basis of the state court's judgment. The last

reasoned decision of the state court, the California Court of Appeal's

unpublished opinion, failed to cite to any federal law, much less the

controlling Supreme Court precedents, and failed to apply the totality of

the circumstances test. The California Court of Appeal failed to consider

the cumulative impact of the three incidents, as well as the cumulative

effect of several other coercive judicial actions and statements. [4] Thus,

the state court's decision was contrary to clearly established Supreme

Court law.

[5] A petitioner is not entitled to habeas relief unless the court both

failed to apply clearly established Supreme Court law and reached an

erroneous result that warrants the issuance of a writ. [6] Applying

Supreme Court law, the Ninth Circuit has found judges' comments to be

unduly coercive and violative of defendants’ due process rights in

circumstances far less coercive than Packer's. [7] The state court's

comments on May 13 amounted to a de facto Allen charge to the jury,

that is, a charge to work towards unanimity and the minority to

reexamine its views. The state court's questions to the foreman about

whether further deliberations might "help" the jury to "make further

progress" could be understood only to suggest approval for the apparent

goal of that "progress" -- unanimous verdict. The state court's comments

sent a clear message that the jurors in the majority were to hold their

position and persuade the single hold-out juror to join in a unanimous

verdict.

[8] The state court’s de facto Allen charge was particularly coercive

because it knew that Radcliff was the lone hold-out juror and Radcliff

knew that it knew she was the hold-out juror. Under these circumstances,

the state court's questions about whether further deliberations would help

the jury to make further progress, though directed to the foreman, could

be read by Radcliff as being leveled only at her. If a judge knows the

numerical division of a jury and then gives an Allen charge, reversal is

necessary if the holdout jurors could interpret the charge as directed

specifically at them. [9] The state court's conduct during the May 13

conference was also coercive because it humiliated Juror Radcliff

unnecessarily. The state court allowed Radcliff's claimed “public

beating” to occur by reading the foreman's letter, unabridged, in open

court, and without any attempt to lessen the impact of its attacks of

Radcliff. [10] Under these circumstances, the state court's failure to give

es Oe nee at,

any counter-balancing instruction on or after May 13 strongly supported

the conclusion that Radcliff was coerced to change her vote.

[11] The Supreme Court has instructed that, when the jury break

down is 11 to one, the most extreme care and caution are necessary in

order that the legal rights of the defendant should be preserved. The state

court did not exercise the care and caution required to preserve Packer's

due process rights. [12] The state court's decision was erroneous: the

judge's actions and statements were, as a whole, and under all of the

circumstances, impermissibly coercive and resulted in a denial of

Packer's constitutional right to a fair and impartial jury. Because the jury

was considering both the murder and attempted murder counts when this

coercion occurred, it had to be concluded that the judge’s coercion

manifestly had a substantial and injurious effect on the jury’s verdicts on

these counts. The district court's denial of the writ of habeas corpus had

to be reversed and the matter remanded with instructions to grant the

writ as to Packer’s murder and attempted murder convictions.

Judge Silverman dissented, writing that Packer failed to show that

the Court of Appeal's decision was contrary to, or involved an

unreasonable application of, clearly established federal law.

COUNSEL

Elizabeth Newman, Los Angeles, California (argued) and

Monica Knox, La Crescenta, California (brief), for the

petitioner-appeilant.

Kenneth N. Sokoler, Deputy Attorney General, Los Angeles,

California, for the respondents-appellees.

ORDER

Petitioner-Appellant William Packer's request for clarification of

the remand order is granted. The opinion filed January 15, 2002 is

amended as follows:

1. Qn the second line from the bottom of slip opinion 644, “returned

verdicts” should be replaced with “returned sealed verdict forms to

the court.”

2. The third and fourth sentences of the first full paragraph of slip

opinion page 663 should be deleted and replaced with the following

(including footnote 16):

Because the jury was considering both the murder and

attempted murder counts when this coercion occurred, we

conclude that the judge's coercion manifestly had a

“substantial and injurious effect” on the jury's verdicts on

these counts. Brecht, 507 U.S. at 637, 113 S.Ct. 1710, 123

L.Ed.2d 353. We therefore reverse the district court's denial

of the writ of habeas corpus and remand with instructions to

grant the writ as to Packer's murder and attempted murder

convictions.

3. On slip opinion page 665, the remainder of the majority opinion

below the heading “Conclusion” should be deleted and replaced

16. We disagree with the prosecution's contention that habeas

relief should only extend to the murder charge because the jury reached

a verdict on the attempted murder charge before the juror coercion

began. To the contrary, Foreman Wkye told Judge Phelps and counsel

that the jury was continuing to deliberate about the attempted murder

charge (count 2) on the afternoon of Friday, May 15. See ER 42, 110-11.

We also disagree with Packer's contention that habeas relief should

extend to a// of the charges he was convicted of committing because

none of the verdicts was final when the juror coercion occurred. Sealed

verdict forms on all but the murder and attempted murder charges were

submitted to the court before the juror coercion occurred, and there is no

indication in the record that any of the jurors wavered in their votes on

these charges.

;

with the following:

While we agree with the district court's reyection of Packer's

leg brace claim, we reverse its decision to deny the wnt of

habeas corpus with respect to the murder and attempted

murder convictions, because we uphold Packer's juror

coercion claim as to those counts. As to the remaining counts

on which Packer was convicted, we affirm the denial of the

writ. Accordingly, we remand to the district court ‘or the

granting of an appropriate wnt of habeas corpus on the murder

and attempted murder counts.

AFFIRMED IN PART; REVERSED IN PART; AND

REMANDED.

OPINION

PREGERSON, Circuit Judge:

In 1992, a California state jury convicted William Packer

(“Packer’’) of one count of second degree murder, one count of attempted

murder, two counts of attempted robbery, two counts of assault with a

deadly weapon, and one count of assault with a firearm. The jury

acquitted Packer on ten other counts.

[1] After exhausting his claims in state court,* Packer timely filed

a federal habeas corpus petition. Magistrate Judge Margaret Nagle

prepared a report (“Report”) recommending that Packer's petition be

denied. District Judge Harry L. Hupp adopted Magistrate Judge Nagle's

Report, but granted Packer a certificate of appealability on two of

Packer's claims: that the state trial judge violated his Fourteenth

Amendment right to due process by coercing the jury into rendering a

guilty verdict, and that the state trial judge violated Packer's Sixth and

1. See Section II.A, infra.

Fourteenth Amendment rights by ordering him to wear a concealed leg

brace at trial that caused Packer pain and prevented him from

straightening his leg. Because we hold for Packer on the first claim, we

reverse the district court and remand with instructions to grant the writ

of habeas corpus.”

I. Background

A. Juror Coercion Claim

On May 12, 1992, after over twenty hours of deliberation, and after

the jury had returned sealed verdict forms to the court on all but the

murder and attempted murder charges, Juror Eve Radcliff (“Juror

Radcliff") wrote the judge, asking to be dismissed “{dJue to health

problems.” Judge Phelps and Juror Radcliff then met outside the

presence of the defendant and the attorneys. The following conversation

ensued:

Radcliff: Well, since I wrote that letter I have been thinking over things

a little bit and I think maybe I should — see, these are some

very serious charges.

Judge: They certainly are. I don't want to know how they been voted

on. I don't want to know how they been voted on.

Radcliff: Certainly not, your Honor. But I can't--because of the

seriousness of the charges, I can't make snap decisions. And

Just as in your instructions you stated to us certain things to

practice in deliberations. I was beginning to feel a little burned

out.

Judge: Weall are.

2. We review a district court's decision to dismiss a petition for

writ of habeas corpus de novo. Miles v. Prunty, 187 F.3d 1104, 1105

(9th Cir.1999).

Radcliff: Yeah.

Judge: [Y]ou are going to take off Thursday and we're going to allow

that. So you think you can hold out just a little bit longer?

Radcliff: Yes.

Judge: 1 really appreciate it. Otherwise, they have to start

deliberations all over again with another person?

Radcliff: That's what I understand.

(Emphasis supplied).

The next day, May 13, Judge Phelps received a note from the jury

foreman, Richard Wyke (“Foreman Wyke”). Foreman Wyke wrote:

I believe we hewe reached a state where we can no longer

deliberate. One juror, Eve Radcliff, does not appear to be able

to understand the rules as given by you. I have been

approached by nearly all my fellow jurors questioning her

ability to understand the rules and her ability to reason. I feel

3. California law allows for the substitution of an alternate juror

after a verdict has been reached on some but not all of the counts,

provided that the ‘rial court instructs the panel to begin deliberations

anew on the remassing counts. People v. Aikens, 207 Cal.App.3d 209,

211, 254 Cal.Rptr. 30 (1988). A juror can be substituted if he or she

becomes sick, or for other “good cause,” including the juror’s inability

to render a fair and unbiased verdict. People v. Delamora, 48

Cal.App.4th 1850, 1855, 56 Cal.Rptr.2d 382 (1996) (jurors cannot be

excused if they are not ill or otherwise unable to perform their duties);

People v. Farris, 66 Cal.App.3d 376, 386, 136 Cal.Rptr. 45 (1977)

(“good cause” is shown if the juror is unable to “render a fair and

unbiased decision’’).

that if we continue we will end up as a hung jury, not based on

facts and evidence, but one person's inability to reason or

desire to be unreasonable.

Judge Phelps read the note aloud in open court, in the presence of the

attorneys, the defendant, and all of the jurors. Judge Phelps then asked

Foreman Wyke whether the jury was deliberating. Wyke responded that

they were “just having the same conversation over the same issue time

and time again.” Judge Phelps asked whether the dispute was factual.

Wyke responded that “[i]t basically comes down to there's a point where

the rules of law, or as has been described, we just have a total difference

of opinion over. | think we have a state of denial almost where its just

not happening.” Judge Phelps then explained:

The juror has a right to do that, as you all know. They have a

right to disagree with everybody else. But they do not have a

right to not deliberate. They must deliberate and follow the

rules and laws as | state it to them.

After more discussion, Judge Phelps said:

Judge: Thenext question I have for you, I just want two numbers and

that's all. I want to know nothing else but two numbers. I'll

ask you this. In your last ballot what was the ballot? What

was the count? Don't tell me for or against, just numbers.

Wyke: Iknow. The last one was 11 to 1.

Judge: Iltol.

Judge: The one before that was 10 and 2.

Judge: De vou think that further deliberations might help. 1 think

you're off tomorrow, are you not?

Wyke: Yes.

a aes

Judge:

Wyke:

Judge:

Wyke:

Radcliff:

Judge:

Wyke:

Judge:

Do you think if you take off now and come back Friday you

might be able to make further progress ?....

It comes down to interpreting.

It's been a long time for you people.

Yes. We are getting tired of each other. It comes down to

interpreting the laws as given to us, and if one person's

interpretation is inflexible in their view, I don't know that it

will do us any good.

Or different.

Has the person been deliberating? And discussing—

Yes. I'm not questioning that. We might give it a shot and

come back Friday moming. If it continues we are going to be

hung.

If you do that, then what you're saying to me is there's a

possibility you could reach a verdict, but let's take a little time

off. That might help? I don't think it would hurt.

(Emphasis supplied). Jurors then began asking questions about the

deliberative process and the following conversation ensued:

Radcliff:

Judge:

Radcliff:

Judge:

Radcliff:

Was there something regarding morals in the instructions that

you gave us?

I don't think so. No. -

You cannot give us an interpretation of the law.

No. I cannot do that.

It's up to us individually to interpret the law and apply it.

Judge: What you do is--like I think what the instructions were--you

apply the facts to the law and you arrive at a decision. The

law is right there, and I think elements of the law was given

to you in those instructions. They do this or not do this? Was

it proven beyond a reasonable doubt? This element, this

element, this element? If they did and you find unanimously

they did that, you must follow the law and find them either

guilty or not guilty of that charge.

(Emphasis supplied). At this point, defense counsel objected and, in a

side bar, said that Judge Phelps was misstating the instructions and

improperly “instructing the jury ... as to their manner of deliberation.”

Defense counsel then asked that Judge Phelps instruct the jury only that

they are “to follow the law as I give it to you and to refrain from

explaining further what that instruction might mean in practice.” The

prosecutor offered that Juror Radcliff's comments reflected that she was

not going to follow the law. Judge Phelps overruled defense counsel's

objection and instructed the jury as follows:

Ladies and Gentlemen, the only thing I'm going to tell you

right now is; once again, I told you, you'll look up in the

instructions paraphrasing it, I think I'm using the correct

words: you're the sole judges of the facts. You determine the

facts. You then apply the law to those facts as I state it to you,

and you must accept and follow the law. You can't make up

your own law. You must accept and follow the law as I state

it to you.

Judge Phelps then excused the jury until Friday.

On Friday, May 15, the jury continued its deliberations. That

afternoon, Juror Radcliff submitted a second letter to Judge Phelps that

read:

Due to the public beating in the jury box I experienced

Wednesday, and the beatings I experience in the deliberation

room from other jurors, I am again submitting a request to be

—————

A A a A ee

oo. eee

ee ee ee eee

dismissed from continuing on this jury.

I now am struggling with a feeling of distrust and disrespect

from the other jurors, borne out of the letter that was

submitted to you, regarding my so-called “refusal” to accept

or agree with the other jurors’ thinking.

| did not know anything about the letter that the other

jurors/foreman submitted to you regarding me. As I result |

find it difficult to continue in deliberations.

Respectfully submitted, Eve Radcliff

P.S. Though the proceedings have improved in their nature, |

have reached a point of anger, and I don't believe I can be

objective.

(Emphasis in original). After reading Juror Radcliff's second letter to the

attorneys in chambers, defense counsel stated that Radcliff was being

driven off the jury.” Judge Phelps informed counsel that he was going

to call Juror Radcliff into chambers. Defense counsel objected to Judge

Phelps's decision to call Juror Radcliff into chambers.* Defense counsel

said:

Let me -- just so I can get my record clear. Let me say that I--

also / object to this procedure . | feel what's happening is that

Miss Radcliff is being singled out. And it's more pressure on

her to either change her vote or be excused. And I think this

is the process that causes that. This causes somebody --

especially when she is going to come into chambers with just

the court and counsel, puts her in a very difficult position.

4. Defense counsel additionally argued that Packer would be

denied a jury drawn from a fair cross-section of the community were

Juror Radcliff excused because she was one of two black people on the

jury.

When Juror Radcliff was brought into chambers, she said a

“personality ething” was affecting deliberations.~As she explained:

I didn't know about the letter that they submitted to you until

like a minute and a half before we went out in the box. And

then when it was read, it sounded to me like they wanted--the

intent was for me--they were upset because I didn't--I wasn't--

okay. | think if I recall correctly something like, refuses to

understand our thinking, or refuses to accept our line of

reasoning, or refuses to accept the law. I think that's what they

said or something like that. And I took that to mean that

things weren't going the way that they were supposed to go,

because at that point I was giving them responses, you know.

We were deliberating, I thought, but they felt that they weren't

getting from me the type of responses that they wanted

because I didn't see what they were saying...

(Emphasis supplied). After Judge Phelps asked Juror Radcliff whether

she was continuing to deliberate, she explained that she was trying, but

said “[i}t's not to their satisfaction, that's what part of the problem is.”

Judge Phelps said: “Two weeks is a long, long time, it is, and I

appreciate that. Okay. I think I understand. Thank you very much.”

Juror Radcliff returned to the jury room.

Judge Phelps then called in Foreman Wyke to meet with him and

the attorneys. Judge Phelps asked Wyke: “is the position that you have

reached in your deliberations that you can't go any further or do you

think that--how do you feel about it?” Wyke explained their current

deliberations process and repeatedly confirmed that Juror Radcliff was

continuing to deliberate. Wyke was excused from Judge Phelps's —

chambers, and the jury continued to deliberate.

At the end of that day the jury was excused until Tuesday, May 19.

On the morning of May 19, Juror Radcliff wrote Judge Phelps again,

“requesting to speak with [the Judge] alone, in the presence of a court

reporter only, if possible.” Judge Phelps did not meet with Juror

et ee ly EN a FE IO OL ———

—e .

Radcliff.» The jury rendered a guilty verdict on the attempted murder

charge late in the afternoon of May 19, and was then excused for the

day. Early in the morning of May 20, the jury rendered a guilty verdict

on the murder charge.

B. Leg Brace Claim

The day after the jury was swor, the Sheriff's Department

requested that Packer wear a leg brace underneath his pants during trial.

The leg brace locked in a straight position when the wearer stood, was

worn under one pant leg, and attached with velcro to the thigh and calf.

At the Sheriffs Department's request and over defense counsel's

objection, Judge Phelps held an in camera hearing to review the evidence

supporting the request. During the in camera hearing, Sergeant Fogerty

and two Deputies, Leibrich and McCarthy, explained that they sought

the leg brace because James “Doc” Holliday (“Holliday”), one of

Packer's prospective witnesses, was a “very high security risk.” Sergeant

Fogerty explained, under oath:

I received some information from Deputy Chaffin from the

Security Unit yesterday that our Special Investigations Bureau

has information that somebody connected with Holliday has

said that when he gets to L.A., that stuff is going to happen.

He's got nothing to lose. He wants out. He's a high escape

risk.

Judge Phelps asked how this information applied to Packer. Deputy

McCarthy explained, in an unsworn statement, that:

James Holliday's wife has had communications with Packer,

and that the information is that the communication between

the two of them was: “I'll see you in Los Angeles, and that

5. In another handwriting, at the bottom of the note, was written:

“request cancelled at 9:25 a.m.” It is unclear from the record who

canceled the request.

that's when its going to happen.” Now, what we're trying to do

now is establish exactly who the source is of that information,

and that's the part that we don't want to disclose in court.”

Finally, the Sheriff's Department reported--during the in camera hearing

and, ai Judge Phelps's request, in open court--that they also sought a leg

brace because Packer had a “special handling card” at the county jail,

which was described as “‘a description of an inmate's possible potentia'

problems of some sort,” and because Packer had caused “some majcv

disturbances” including “gang fights” while in custody.

Defense counsel countered that the only prison disturbance Packer

had been involved in was in 1982, while Packer was in custody on

another case, and that Packer was ultimately acquitted of charges arising

out of that disturbance. Packer also testified in opposition to the use of

the leg brace. Packer challenged the Sheriff's Department's

characterization of his conduct while in custody and testified that, in his

experience, restraints “definitely inhibit[] one's ability to function, to

communicate ... [, and] to concentrate.”

Judge Phelps ordered Packer to wear the leg brace during trial.

Judge Phelps found that the leg brace was necessary based upon

testimony received at the in camera hearing and the testimony in open

court, and concluded that the leg brace would not compromise the

integrity of the proceedings. Judge Phelps explained:

[T]he leg brace will not be visible to the jury; will not impede

communications with his lawyer; will not detract from the

dignity or the decorum of the judicial proceeding; will not be

painful to the defendant; and would not be -- he will be seated

before the jury enters and remain seated until the jury leaves.

If the defendant chooses to take the stand, he'll be on the stand

6. Deputy McCarthy's information is contradicted by Packer's

undisputed declaration that Holliday's wife was in federal custody at the

time the alleged “communication” occurred between Packer and

Holliday's wife.

before the jury enters and remain on the stand until after the

jury leaves.

As a result of the leg brace, Packer was required to remain seated at all

times and was, therefore, unable to stand when the judge and jury

entered the courtroom. Holliday was never called as a witness.

Il. Discussion

A. Exhaustion

The State contends that Packer failed to exhaust his claims in state

court. However, Packer's Petition for Review, though succinct, “ ‘fairly

presented’ ... the ‘substance’ of his federal habeas corpus claim[s]” to the

California Supreme Court. Anderson v. Harless, 459 U.S. 4,6, 103 S.Ct.

276, 74 L.Ed.2d 3 (1982) (quoting Picard v. Connor, 404 U.S. 270, 277-

78, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971)). Thus, the State's argument is

without merit.

B. Merits

1. Packer's Fourteenth Amendment due process rights were

violated because there is a strong likelihood that Judge Phelps's

coercive statements and actions during the jury's deliberations

caused Juror Radcliff to change her vote.

[1] A federal court may grant a writ of habeas corpus to a state

prisoner only if the state court's rulings “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 were “based on an unreasonable determination of the

facts in light of the evidence presented” in the state courts.” 28 U.S.C.

7. Packer's petition is governed by the standards of 28 U.S.C §

2254 because his habeas petition was filed after the effective date of the

Anti-Terrorism and Effective Death Penalty Act, the statute which

enacted the current standards governing the granting of the writ of

§ 2254(d). Under the “contrary to” clause, a state court's decision is

contrary to Federal law if it “failed to apply the correct controlling

authority from the Supreme Court.” Shackleford v. Hubbard, 234 F.3d

1072, 1077 (9th Cir.2000); see also Williams v. Taylor, 529 U.S. 362

405-07, 120 .C\, 1495, 146 L.B4.24 389 (2000); Lajoe Thompson,

: (9th Cir.2000); Tran v. Li

ethan ) ndsey, 212 F.3d 1143, 1150

[2] Here, Packer's juror coercion claim is governed by Federal law

first set forth in Jenkins v. United States, 380 U.S. 445, 85 S.Ct. 1059,

13 L.Ed.2d 957 (1965) and expanded upon in Lowenfield v. Phelps, 484

U.S. 231, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988).” Coercive statements

from the judge to the jury result in a denial of the defendant's right to a

fair trial and an impartial jury. Lowenfield, 484 U.S. at 241, 108 S.Ct.

546. In order to determine whether the judge's comments were

impermissibly coercive, the court must evaluate them “in [their] context

and under all the circumstances.” /d. at 237, 108 S.Ct. 546 (quoting

Jenkins, 380 U.S. at 446, 85 S.Ct. 1059). The fact that Supreme Court

law sets forth a fact- intensive inquiry to determine the extent of the

statements’ coerciveness “obviates neither the clarity of the rule nor the

extent to which the rule must be seen as ‘established’ by this Court.”

Williams, 529 U.S. at 391, 120 S.Ct. 1495 (stating this in regard to

Strickland’s case-by-case approach); see also Fisher v. Roe, 263 F.3d

906, 914 (9th Cir.2001) (holding Supreme Court law “clearly

established” because Supreme Court “set forth a working constitutional

standard by which to evaluate [the claim at issue]”). Therefore, the

applicable legal principles prohibiting juror coercion and the framework

of the totality of circumstances test were “clearly established” for

purposes of § 2254(d)(1).

[3] Because the California Supreme Court denied petitioner's

habeas corpus.

8. See also Brasfield v. United States, 272 U.S. 448, 47 S.Ct

135, 71 L.Ed. 345 (1926); Burton v. United States, 196 U.S. 283, 25

S.Ct. 243, 49 L.Ed. 482 (1905).

habeas petition without comment, we look to the last reasoned decision

of a state court as the basis of the state court's judgment. Shackleford v.

Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000); see also Yist v.

Nunnemaker, 501 U.S. 797, 803-04, 111 S.Ct. 2590, 115 L.Ed.2d 706

(1991). Here, the last reasoned decision of the state court, the California

Court of Appeal's unpublished opinion,” failed to cite to any federal law,

much less the controlling Supreme Court precedents. Moreover, the

court failed to apply the totality of the circumstances test as required by

Lowenfield and Jenkins. Rather than evaluating the totality of the

circumstances under which the judge's actions and comments occurred,

as required by Lowenfield and Jenkins, the California Court of Appeal

simply mentioned three particular incidents in its analysis and

considered each of them separately, finding no reversible error in any of

the following: (1) Judge Phelps's statement to Juror Radcliff, at the May

12 conference in chambers, “that deliberations would have to begin anew

if [Radcliff] were excused”; (2) Judge Phelps's failure to further clarify

the law in light of the instructions given on May 12; or (3) Judge

Phelps's “urging the jury to consider the matter further with the view to

reaching an agreement” on May 13. The California Court of Appeal

failed to consider the cumulative impact of these three incidents, as well

as the cumulative effect of several other coercive judicial actions and

statements in this case./”

9. See People v. Jordan, et al., No. A958712 (Ca. Ct.App. filed

Apr. 13 1995).

10. Significantly, the court does not even mention in its analysis

that Judge Phelps inquired about the breakdown of the jury and, after

learning that it was first ten to two and then eleven to one, directed the

jury to return to its deliberations. See Lowenfield, 484 U.S. at 239- 41,

108 S.Ct. 546; Brasfield v. United States, 272 U.S. 448, 449, 47 S.Ct.

135, 71 L.Ed. 345 (1926); Burton v. United States, 196 U.S. 283, 307,

25 S.Ct. 243, 49 L.Ed. 482 (1905). The state court also failed to

consider the following critical facts: (1) Judge Phelps knew that Radcliff

was the sole dissenting juror prior to his instructing the jury to keep

deliberating; and (2) Judge Phelps's action of reading the note from

Foreman Wyke out loud in front of the jury and identifying juror -

[4] in addition to failing to apply controlling Supreme Court law,

the state court made an explicit statement of law that is contrary to

Supreme Court precedent. The California Court of Appeal stated that

“there 1s nothing improper in urging the jury to consider [a case] further

with the view to reaching an agreement as long as the language used

does not coerce a particular type of verdict.” However, the Supreme

Court has held a judge's instructions to be coercive simply because it

coerced a verdict. The error lies in simply pressuring the jurors to arrive

at some verdict, not in urging the jury to reach a particular verdict. See

Gypsum Co., 438 U.S. at 461, 98 S.Ct. 2864 (holding reversible error

when judge implied that he wanted the jury to reach a verdict “one way

or the other”); Jenkins, 380 U.S. at 446, 85 S.Ct. 1059 (holding

reversible error when judge told the jury, “you have got to reach a

decision in this case’’). Thus, the state court's decision was contrary to

clearly established Supreme Court law, not only because it failed to

apply the governing law, but also because its partial rationale directly

contradicted Supreme Court precedent.“ See Campbell v. Rice, 265

F.3d 878, 889- 90 (9th Cir.2001); Lockhart v. Terhune, 250 F.3d 1223,

1229, 1232 (9th Cir.2001); Shackleford, 234 F.3d at 1078; McClain v.

Prunty, 217 F.3d 1209, 1223 (9th Cir.2000).

[5] However, the petitioner is not entitled to habeas relief unless the

Califorma Court of Appeal both failed to apply clearly established

Supreme Court law and reached an erroneous result that warrants the

issuance of a writ. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113

S.Ct. 1710, 123 L.Ed.2d 353 (1993). Given our conclusion that the state

court failed to apply clearly established Federal law, we must now

determine whether its decision constituted error and if so whether the

error had a substantial or injurious effect on the verdict. See id. Our first

task 1s to look to Supreme Court case law and our own cases (and in

appropriate instances those of other circuits), and apply them in the

Radcliff by name.

11. In fact, in this case the state court failed even to consider

whether a federal constitutional violation occurred, as the petitioner had

urged; instead it addressed only issues of state law.

ordinary course.“ In the case before us, our analysis of the applicable

federal law compels us to conclude that the judge's statements were

impermissibly coercive.

[6] Applying Supreme Court law, we have found judges’ comments

to be unduly coercive and violative of defendants’ due process mghts in

circumstances far less coercive than those present here. In Jiminez v.

Myers, 40 F.3d 976 (9th Cir.1993), the tral judge met twice with a

deadlocked jury. /d. at 978-79. In the first meeting, the judge asked how

many votes had been taken, how the breakdown of the votes began and

ended, and whether there had been any “movement.” /d. at 979. After

the foreman replied that there was “movement,” the judge returned the

jury to its deliberations. /d. After further deliberations, the jury met

again with the judge and informed him that it was divided eleven to one.

Id. The judge noted that there had been “substantial movement” and sent

the jury back to deliberate. /d. Less than two hours later, the jury

returned with a unanimous verdict. /d.

We concluded in Jiminez that the trial court's comments and

conduct “amounted to giving the jury a de facto Allen charge."~ /d. at

980. In support of this conclusion, we observed:

In view of the disclosure after the second impasse that only

one juror remained in the minority and the tnal court's implicit

approval of the “movement” toward unanimity, the judge's

instruction to continue deliberating until the end of the day

12. Unlike in those post-ADEPA § 2254 cases in which the state

court applied the controlling federal law but the petitioner urges that the

application was unreasonable, here the state court failed to apply the

contrelling Federal law, and so the result it reached need not be clearly

erroneous in order for a writ to issue; the fact that the result is erroneous

is sufficient, so long as the Brecht standard is met.

13. An Allen charge “instructs the jurors to work towards

unanimity and the minority to reexamine its views.” Jiminez, 40 F.3d at

980.

sent a clear message that the jurors in the majority were to

hold their position and persuade the single hold-out juror to

join in @ unanimous verdict, and the hold-out juror was to

cooperate in the movement toward unanimity.

Id. at 981 (emphasis supplied). Under these circumstances, we held, the

judge's “failure to counter-balance the implication of its questions and

comments by instructing the hold-out juror not to surrender his or her

sincere convictions strongly supports the conclusion that the jury was

impermissibly coerced to render a unanimous verdict.” /d. (citation

omitted).

(7| Judge Phelps's comments on May 13 amount to a “de facto

Allen charge.” Jd. Judge Phelps asked about the jury's breakdown,

learned that it had been divided ten to two but was currently divided

eleven to one, and said that he would send the jurors back to deliberate

if the foreman thought that “further deliberations might help” or if the

jury might be able “to make further progress.” Like the trial judge's

approving comments about “movement” in Jiminez, Judge Phelps's

questions to Foreman Wyke about whether further deliberations might

“help” the jury to “make further progress” can only be understood to

suggest approval for the apparent goal of that “progress”--a unanimous

verdict. As in Jiminez, Judge Phelps's comments sent “‘a clear message

that the jurors in the majority were to hold their position and persuade

the single hold-out juror to join in a unanimous verdict.” /d.

[8] Judge Phelps's “de facto Allen charge” was particularly coercive

because he knew that Juror Radcliff was the lone hold-out juror and

Radcliff knew that he knew she was the hold-out juror. When J udge

Phelps made his coruments, he had read Wyke's letter in open court and

learned from Foreman Wyke that the jury breakdown was eleven to one.

Under these circumstances, Judge Phelps's questions about whether

further deliberations would “help” the jury to “make further progress,”

though directed to Foreman Wyke, “could only be read by [Radcliff] as

being leveled at [her].” United States v. Sae-Chua, 725 F.2d 530, 5

(9th Cir.1984). Sa eee

oP Arn a

{S]he could hardly escape reasoning that the judge was not

likely to believe that [s]he could persuade the opposing eleven

to adopt [her] position--a position the foreman had felt to be

improperly taken; and that /s/he, individually, was being

urged by the judge to reconsider [her] vote.

Id. (emphasis supplied). We have held that if a judge knows the

numerical division of a jury and then gives an Allen charge, “reversal is

necessary if the holdout jurors could interpret the charge as directed

specifically at them--that is, if the judge knew which jurors were the

holdouts and each holdout juror knew that the judge knew he was a

holdout.” United States v. Ajiboye, 961 F.2d 892, 894 (9th Cir.1992).

Even though Judge Phelps did not actually give an Allen charge, his

comments had the same meaning and effect, and therefore, the

comparable circumstances present here merit the same findings of

coercion and error: “{s]o long as the defendant has offered facts that

fairly support an inference that jurors who did not agree with the

majority felt pressure from the court to give up their conscientiously held

beliefs in order to secure a verdict, we must proceed to the Al/en charge

analysis.” Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir.1999).

[9] Judge Phelps's conduct during the May 13 conference was also

coercive because it humiliated Juror Radcliff unnecessarily. Judge

Phelps read Foreman Wyke's letter in open court, including its references

to Juror Radcliff as a juror who “does not appear to be able to understand

the rules,” and about whom Wyke had been “approached by nearly all

[his] fellow jurors questioning her ability to understand the rules and her

ability to reason.” As is evidenced by Juror Radcliff's May 15 note and.

her comments during the meeting in chambers with Judge Phelps and the

attorneys, hearing Wyke's letter felt like a “public beating” that was

intended to make her change her vote. Judge Phelps allowed this “public

beating” to occur by reading Wyke's letter, unabridged, in open court,

and without any attempt to lessen the impact of its ad hominem attacks

of Juror Radcliff. .

[10] Under these circumstances, Judge Phelps's failure to give any

counter- balancing instruction on or after May 13 strongly supports the

conclusion that Juror Radcliff was coerced to change her vote.

Although Judge Phelps commented that “the juror” had a right “to

disagree with everybody else” at the beginning of the conference on May

13, he immediately countered that she did not “have a right to not

deliberate,” told Radcliff that “[tJhe law is right there” and she must

“follow the law,” and instructed the jurors that they “must accept and

follow the law” and “can't make up [their] own law.” Judge Phelps

never reminded Radcliff or the other jurors of their obligation not to

surrender their conscientiously held beliefs. Judge Phelps again failed

to give a counter-balancing instruction on May 15, when he met with

Juror Radcliff and the lawyers. A counter-balancing instruction would

have been particularly appropriate under the circumstances of the

meeting which, as defense counsel observed, “put{] her in a very difficult

position,” and was “more pressure on her to either change her vote or be

excused.” Given the feelings of humiliation and pressure that Juror

Radcliff expressed during the May 15 conference, a counter-balancing

instruction would undoubtedly have been welcomed.

[11] The Supreme Court has instructed that, where the jury break

down is eleven to one, “the most extreme care and caution [are]

necessary in order that the legal rights of the defendant should be

preserved.” Burton v. United States, 196 U.S. 283, 307, 25 S.Ct. 243,49

| l 4. Judge Phelps did give a counter-balancing instruction in the

instructions he gave before the jury began its deliberations.

. 15. The dissent contends that because defense counsel did not

object to the judge's allowing the deliberations to continue with Juror

Radcliff on the jury after the May 15 meeting, Packer should not now be

able to argue that Juror Radcliff was coerced. However, there is no

precedent ‘that Suggests that a defense attorney's desire to have a

particular juror remain on the jury renders a judge's coercive statements

to the jury harmless. Indeed, such a desire may make the need for a

counter-balancing instruction even greater. Here, although defense

counsel did argue that Radcliff should remain on the jury, he also urged

that she not be pressured to change her vote and that the judge not meet

privately with her in his chambers.

L.Ed. 482 (1905). Judge Phelps did not exercise the care and caution

required to preserve Packer's due process rights. One day after Judge

Phelps had encouraged Juror Radcliff to remain on the jury despite her

request to be excused, Judge Phelps read Foreman Wyke's letter in open

court, in which Wyke described Radcliff as a juror who was unable to

“understand the rules” and “reason.” Judge Phelps then asked about the

jury break down, and, learning that the breakdown was eleven to one,

indicated that the jury should continue deliberating if it would “help” or

allow the jury to “progress” without ever providing a counter-balancing

instruction that Juror Radcliff should not abandon her conscientiously

held views. During the May 15 conference, Judge Phelps learned that

Juror Radcliff felt that she had been “beaten” during the May 13 meeting

and was feeling pressured by the other members of the jury to join the

majority, but Judge Phelps again failed to give a counter-balancing

instruction that Radcliff should not surrender her conscientiously held

beliefs.

[12] In sum, the California Court of Appeal's decision was

“contrary to ... clearly established Federal law” because it failed to apply

clearly established Supreme Court law. 28 U.S.C. § 2254(d). After

examining the relevant federal juror coercion cases, we hold that the

state court's decision was erroneous: the judge's actions and statements

were, as a whole, and under all of the circumstances, impermissibly

coercive and resulted in a denial of Packer's constitutional right to a fair

and impartial jury. Because the jury was considering both the murder

and attempted murder counts when this coercion occurred, we conclude

that the judge's coercion manifestly had a “substantial and injurious

effect” on the jury's verdicts on these counts. Brecht, 507 U.S. at 637,

113 S.Ct. 1710, 123 L.Ed.2d 353. We therefore reverse the district

16. We disagree with the prosecution's contention that habeas

relief should only extend to the murder charge because the jury reached

a verdict on the attempted murder charge before the juror coercion

began. To the contrary, Foreman Wkye told Judge Phelps and counsel

that the jury was continuing to deliberate about the attempted murder

charge (count 2) on the afternoon of Friday, May 15. See ER 42, 110-11.

We also disagree with Packer's contention that habeas relief should

court's denial of the writ of habeas corpus and remand with instructions

to grant the writ as to Packer's murder and attempted murder convictions.

2. Although Packer's due process rights were violated when Judge

Phelps ordered Packer to wear a leg brace during trial, Packer

is not entitled to relief because the error was harmless.

Although the Due Process clause of the Fourteenth Amendment

generally protects a defendant's right to appear at trial without shackles

or other physical restraints, a trial judge's decision to restrain a defendant

at trial is not unconstitutional per se. J//inois v. Allen, 397 U.S. 337, 344,

90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The Supreme Court has held that

in order to maintain the proper “dignity, order, and decorum” during

court proceedings, “trial judges confronted with disruptive,

contumacious, stubbornly defiant defendants must be given sufficient

discretion to meet the circumstances of each case.” Jd. at 343, 90 S.Ct.

1057. Because of their potential for prejudice, however, due proces¥

requires that restraints be used only as a “last resort.” /d. at 344, 90 S.Ct.

1057.

In this case, the only evidence supporting the Sheriff Department's

application for a leg brace was unsworn, hearsay testimony regarding a

potential witness's plar: to do “stuff” while in Los Angeles. None of the

evidence submitted at the hearing reflected that Packer was going to

participate in the “stuff,” and none of the evidence established that the

“stuff” contemplated would cause Packer to engage in disruptive

courtroom behavior or an attempt to escape. Moreover, Packer had

never attempted escape and had, for the most part, a clean disciplinagry

history while in custody. There were, in sum, no persuasive reasons}; why

it was necessary to resort to restraints.

extend to all of the charges he was convicted of committing because

none of the verdicts was final when the juror coercion occurred. Sealed

verdict forms on all but the murder and attempted; murder charges were

submitted to the court before the juror coercion foccurred, and there is no

indication in the record that any of the jurorfs wavered in their votes on

these charges.

In addition, Judge Phelps never considered any alternatives less

restrictive than the leg brace. In light of the fact that the evidence

reflected only that “stuff” might happen if and when Holliday appeared

as a witness, it would have been sensible to wait until Holliday was, in

fact, called as a witness to impose any physical restraint. It would have

been more sensible still to impose a physical restraint on Holliday, who

was the flight risk, instead of Packer. Particularly in light of the fact that

Holliday was never called as a witness at Packer's trial, Judge Phelps's

action was unwarranted. Clearly, in this case the imposition of physical

restraints was not a “last resort.”

Nevertheless, Packer is not entitled to habeas relief on this claim

because he cannot show prejudice resulting from the leg brace. Duckett

v. Godinez, 67 F.3d 734 (9th Cir.1995); Castillo v. Stainer, 983 F.2d

145, 149 (9th Cir.1992). None of the jurors who were interviewed after

trial remembered seeing the leg brace on Packer. See Castillo, 983 F.2d

at 149 (shackling was harmless error because defendant wore waist chain

that could not be seen by the jury); Jones, 899 F.2d at 885 (no prejudice

when defendant's handcuffs were hidden by his shirt or jacket at all

times). Although Packer argues that the leg brace impeded his ability to

participate in his defense, he has not shown that his alleged inability to

contribute to his defense had a “ ‘substantial and injurious effect or

influence in determining the verdict.' “ Brecht, 507 U.S. at 623, 113

S.Ct. 1710 (quoting Kotteakos v. United States, 328 U.S. 750, 776, 66

S.Ct. 1239, 90 L.Ed. 1557 (1946)). In sum, the decision to order Packer

to wear a leg brace did not deny him a fair trial under the circumstances.

CONCLUSION

While we agree with the district court's rejection of Packer's leg

brace claim, we reverse its decision to deny the writ of habeas corpus

with respect to the murder and attempted murder convictions, because

we uphold Packer's juror coercion claim as to those counts. As to the

remaining counts on which Packer was convicted, we affirm the denial

of the writ. Accordingly, we remand to the district court for the granting

of an appropriate writ of habeas corpus on the murder and attempted

murder counts.

AFFIRMED IN PART; REVERSED IN PART: AND

REMANDED.

SILVERMAN, Circuit Judge, dissenting:

I respectfully dissent over two points.

I. The Jury Issue

The majority glosses over a key fact concerning the jury problem:

Defense counsel was aware of everything the judge had said and done

but instead of moving for a mistrial, defense counsel implored the judge

to keep Radcliff on the jury and stated that he had no objection to

allowing the deliberations to continue.

On the afternoon of May 15, the judge informed counsel of

Radcliff's “public beating” note. Defense counsel responded: °

Well, I think that she's being driven off the jury. And what

she's Saying here is she is angry afid upset and that she's

getting treated badly by the other jurors. That doesn't make her

a person that's unable to continue. That just means that she

doesn't like it.

(Emphasis added.)

The judge then stated his intention to interview Radcliff in

chambers in the presence of both counsel. Before the interview began,

defense counsel made it clear to the judge that he did not want to lose

Radcliff as a juror:

[DEFENSE COUNSEL]: This would be the--if you decided

to excuse her, this would be the second black juror and a

woman, and a black woman. I think that we would then be

deprived of a fair cross-section of the community and I would

ask for a mistrial.

THE COURT: You mean based on the fact that there is a

black person being dismissed?

[DEFENSE COUNSEL]: Yes.

Just before the interview commenced, defense counsel objected to

the procedure of singling out Radcliff for interview on the grounds that

the procedure would pressure her to “change her vote or be excused.”

However, after Radcliff was questioned and had left the room, defense

counsel made only one statement: “Sounded like an intelligent,

articulate person who has a difference of an opinion.” He no longer

voiced any objection to the procedure, made no mention of any coercion

or pressure, and made no motion for mistrial.

After foreman Wyke was interviewed and left chambers, the judge

announced his decision to “let them continue to deliberate.” The judge

also briefly discussed a minor scheduling issue. After stating his rulings,

the judge said to counsel, “Any objection to that?” Defense counsel

replied, “No, I don't.”

A party is not permitted to wait-and-see what a verdict will be, and

then upon receiving an unfavorable result, raise for the first time a

problem with the jury of which he was previously aware. As the First

Circuit put it, “We will not allow counsel to stand by quietly and gamble

on a favorable verdict, only to complain when it turns out to be

otherwise.” United States v. Morris, 977 F.2d 677, 686 (1st Cir.1992).

Defense counsel knew full well how the judge had responded to the

Radcliff situation, but defense counsel wanted this jury to continue its

deliberations notwithstanding whatever the judge did, or could have

done better. Had the judge declared a mistrial sua sponte based on either

Radcliff's statements or the judge's own statements, the petitioner would

have had a legitimate right to complain that a mistrial violated his nght

against Double Jeopardy. See United States v. Shaw, 829 F.2d 714, 719

(9th Cir.1987) (citing Arizona v. Washington, 434 U.S. 497, 505, 98

S.Ct. 824, 54 L.Ed.2d 717 (1978)). Defense counsel's faith in this jury

was not altogether misplaced: The jury acquitted the petitioner of 10 of

the 17 counts. n

Perhaps the reason that defense counsel did not seek a mistrial is

that he recognized at the time, as the California Court of Appeal and the

district court did later, that the judge's comments did no harm. After the

coercion supposedly began, the jurors deliberated for at least an

additional eight and a half hours. This fact strongly suggests the absence

of coercion. We have held that claims of jury coercion were rebutted by

much shorter periods of continued deliberations following supposed

coercion. See., e.g., United States v. Daas, 198 F.3d 1167, 1180 (9th

Cir.1999) (one hour); United States v. Plunk, 153 F.3d 1011, 1027

amended on denial of reh'g,161 F.3d 1195 (9th Cir.1998), (roughly two

hours); United States v. Easter, 66 F.3d 1018, 1023 (9th Cir.1995) (two

and a half hours); United States v. Lorenzo, 43 F.3d 1303, 1307, n. 3(9th

Cir.1995) (five and one-half hours); United States v. Bonam, 772 F.2d

1449, 1451 (9th Cir.1985) (90 minutes); United States v. Beattie, 613

F.2d 762, 766 (9th Cir.1980) (three and a half hours).

In this case, the California Court of Appeal held that “the comments

made and not made by the court to the jury did not coerce a particular

verdict or deny Packer any constitutional rights.” The petitioner has

failed to demonstrate that this decision was contrary to, or involved an

unreasonable application of clearly established Federal law, as

determined by the Supreme Court of the United States, as required for

relief under 28 U.S.C. § 2254(d)(1).

Il. The Leg Brace

I agree with the majority that the petitioner has failed to show that

he was prejudiced by having to wear a leg brace under his clothing.

However, I cannot agree with the portion of the opinion that says that the

petitioner's rights were violated by his having to wear the brace to begin

with. A trial judge has wide discretion to decide whether public safety

considerations warrant increased security measures. See Morgan v.

Bunnell, 24 F.3d 49, 51 (9th Cir.1994). The California Court of Appeal

reviewed the trial court's hearing on the matter and held:

The record at the hearing ... established Packer's potential for

nonconforming future behavior, despite the hearsay nature of

and unknown source of some of the information. The court

thus acted within its discretion in minimizing the likelihood of

courtroom disruption. The court need not wait for an escape or

a violent tragedy to occur before ordering an appropriate

physical restraint. The court's order was particularly

appropriate in view of its finding that the “leg brace will not

be visible to the jury; will not impede communications with

[Packer's] lawyer; will not detract from the dignity or the

decorum of the judicial proceeding; will not be painful to the

defendant; and [the defendant] will be seated before the jury

enters and remain seated until the jury leaves.” Although after

the trial Packer complained about the emotional distraction

and physical discomfort of the leg brace, it was a reasonable

physical restraint warranted by the circumstances revealed at

the hearing and not necessarily visible by the jury.

The petitioner has not shown that the Court of Appeal's decision on

this point 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).

APPENDIX B

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM PACKER, No. 00-57051

Petitioner-Appellant, D.C. No.

v. CV 96-04957 HLH

DON HILL, Warden; ATTORNEY ORDER AMENDING

GENERAL OF THE STATE OF OPINION AND

CALIFORNIA, DENYING PETITION

FOR REHEARING AND

Respondents-Appellees. SUGGESTION FOR

REHEARING EN BANC

AND AMENDED

OPINION

Appeal from the United States District Court

for the Central District of California

Harry L. Hupp, District Judge, Presiding

Argued and Submitted

November 8, 2001 — Pasadena, California

Filed January 15, 2002

Amended February 27, 2002

Before: Harry Pregerson, Stephen Reinhardt,

and Barry G. Silverman, Circuit Judges.

Opinion by Judge Pregerson;

Dissent by Judge Silverman

SUMMARY

Criminal Law and Procedure/Due Process

The court of appeals reversed a judgment of the district court. The

court held that a state court's actions in telling a known lone-holdout

juror who asks to be dismissed that deliberations would have to be

started all over with another person if she left; reading a letter written by

the jury foreman in open court that describes the juror as a person who

is unable to understand the rules and to reason; and indicating that the

jury should continue deliberating if it would “help" or allow the jury to

progress" after learning that the breakdown was | 1 to one, without ever

providing a counter-balancing instruction that the juror should not

abandon her conscientiously held views, are unduly coercive and

violative of a defendant's due process rights.

Appellant William Packer was charged with several crimes,

including second degree murder and attempted murder, and tried in

California state court. On May 12, 1992, after over 20 hours of

deliberation, and after the jury had returned verdicts on all but the

murder and attempted murder charges, juror Eve Radcliff wrote the

judge, asking to be dismissed due to health problems. The judge

encouraged Radcliff to remain on the jury, telling her that deliberations

would have to be started all over with another person if she left. The next

day, May 13, the state court read a letter written by jury foreman Richard

Wyke in open court, in which Wyke described Radcliff as a juror who

was unable to understand the rules and to reason. The state court then

asked about the jury break down, and, learning that the breakdown was

11 to one, indicated that the jury should continue deliberating if it would

_ "help" or allow the jury to "progress," without ever providing a counter-

balancing instruction that Radcliff should not abandon her

conscientiously held views. During a May 15 conference, the state court

learned that Radcliff felt that she had suffered a “public beating" during

the May 13 meeting and was feeling pressured by the other members of

the jury to join the majority, but the state court again failed to give a

counter-balancing instruction that Radcliff should not surrender her

conscientiously held beliefs. The jury convicted Packer of murder, but

acquitted him on 10 other counts.