# Appendix — Early v. Packer

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0567%3A3

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2002
- **Citation:** 537 U.S. 3

## Text

4

CMR VULTT,
a) FILED
011765 MAY 28 2002
No.
a

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 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.” Id. 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 trial court's implicit
approval of the “movement” toward unanimity, the judge's
instruction to continue deliberating until the end of the day
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, 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.” Id. 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

13. An Allen charge “instructs the jurors to work towards
unanimity and the minority to reexamine its views.” Jiminez, 40 F.3d at
980.

21

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 Judge
Phelps made his comments, 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, 532
(9th Cir. 1984).

[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

22

beliefs in order to secure a verdict, we must proceed to the Allen 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 “{t]he law is right there” and she must
“follow the law,” and instructec 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 ina very difficult
position,” and was “more pressure on her to either change her vote or be

14. Judge Phelps did give a counter-balancing instruction in the
instructions he gave before the jury began its deliberations.

23

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, “ihe 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.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.

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.

24

[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 judge's coercive actions affected the
verdict, the error manifestly had a “substantial and injurious effect.”
Brecht, 507 U.S. at 637, 113 S.Ct. 1710. We therefore reverse the district
court's denial of the writ of habeas corpus and remand with instructions
to grant the writ.

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. //linois 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 defia”.t defendants must be given sufficient
discretion to meet the circumstances of each case.” /d. at 343, 90 S.Ct.
1057. Because of their potential for prejudice, however, due process
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 plan 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

)
|

ates

25

never attempted escape and had, for the most part, a clean disciplinary
history while in custody. There were, in sum, no persuasive reasons why
it was necessary to resort to restraints.

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 cuurt's rejection of Packer's leg
brace claim, we reverse its decision to deny the writ of habeas corpus
because we upheld Packer's juror coercion claim. We remand to the
district court for the granting of the writ of habeas corpus.

26

REVERSED 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 j udge
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 and upset and that she's
getting treated badly by the other jurors. 7) hat 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. | think that we would then be
deprived of a fair cross-section of the community and I would

ask for a mistrial.

27

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 right
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.

28

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, | 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

29

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).

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FILED
CLERK, U.S. DISTRICT COURT
OCT 23 2000
CENTRAL DISTRICT OF CALIFORNIA
BY [INITIALS] DEPUTY

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

WILLIAM PACKER, No. CV 96-04957-HLH (MAN)

Petitioner,
JUDGMENT

V.

DON HILL, WARDEN, et al.,

Respondents.

IT IS ADJUDGED that the above-captioned action is dismissed
with prejudice.

DATED: _ Oct 23, 2000.
[Signature]

HARRY L. HUPP
UNITED STATES DISTRICT JUDGE

APPENDIX E

FILED
CLERK, U.S. DISTRICT COURT
OCT 23 2000
CENTRAL DISTRICT OF CALIFORNIA
BY [INITIALS] DEPUTY

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

WILLIAM PACKER, No. CV 96-04957-HLH (MAN)
Petitioner,
ORDER ADOPTING
v. FINDINGS, CONCLUSIONS
AND RECOMMENDATION
DON HILL, WARDEN, et al., OF UNITED STATES
MAGISTRATE JUDGE
Respondents.

Pursuant to 28 U.S.C. 636, the Court has reviewed the Amended
Petition, all of the records herein, the Amended Report and
Recommendation of United States Magistrate Judge, and Petitioner's
objections, including the documents appended to the Objections as
Exhibit A. The Court accepts and adopts the Magistrate Judge's
Amended Report and Recommendation.

IT IS ORDERED that Judgment shall be entered dismissing this
action with prejudice.

IT IS FURTHER ORDERED that the Clerk serve copies of this
Order, the Magistrate Judge's Amended Report and Recommendation,
and the Judgment herein on counsel Petitioner and counsel for
Respondents.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: _ Oct 23, 2000.

[Signature]
HARRY L. HUPP

UNITED STATES DISTRICT JUDGE

APPENDIX F

FILED
CLERK, U.S. DISTRICT COURT
SEP 29 2000
CENTRAL DISTRICT OF CALIFORNIA
BY [INITIALS] DEPUTY

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

WILLIAM PACKER, No. CV 96-04957-HLH (MAN)
Petitioner,
AMENDED REPORT AND
V. RECOMMENDATION OF
UNITED STATES

DON HILL, WARDEN, et al., | MAGISTRATE JUDGE

Respondents.

This Amended Report and Recommendation is submitted to the
Honorable Harry L. Hupp, United States District Judge, pursuant to the
provisions of 28 U.S.C. S 636 and General Order 194 of the United
States District Court for the Central District of California.

INTRODUCTION

Petitioner, a California state prisoner represented by counsel, filed
a “Petition For Writ Of Habeas Corpus By A Person In State Custody,”
pursuant to 28 U.S.C. S 2254, on July 16, 1996 (“Petition”). On October
11, 1996, Respondents filed their Return, and asserted that the Petition
should be dismissed for failure to exhaust available state remedies. On
November 26, 1996, Petitioner filed his Traverse. On January 27, 1997,
Petitioner filed an “Amended Petition For Writ Of Habeas Corpus By A

Person In State Custody” (“Amended Petition”).” Respondents filed a
Supplemental Answer on May 5, 1997, and Petitioner filed a Traverse
to the Supplemental Answer on June 18, 1997.

On September 29, 1998, Petitioner requested an evidentiary
hearing, in this action pursuent to Rhoden v. Rowland, 154 F.3d 1034
(a Cir. 298) (“Raoden}”), opt.'on eter with trun n and supersa’eu oy
172 F.3d 633 (9th Cir. 1999) (“Rhoden II”) (“for the purpose of
presenting evidence that some of the jurors saw the leg brace that
Petitioner wore during his state trial. On November 4, 1998, Petitioner
withdrew his evidentiary hearing request, conceding that such evidence
apparently does not exist.”

1. This action previously was assigned to United States
Magistrate Judge Rosalyn M. Chapman. On December 13, 1996,
Magistrate Judge Chapman issued a Report and Recommendation, in
which she recommended that the Petition be dismissed without prejudice
for failure to exhaust state court remedies with respect to Petitioner's
claim based on the ex parte and in camera nature of a hearing regarding
the wearing of a leg brace (discussed infra) . By Order dated January 29,
1997, Magistrate Judge Chapman withdrew her Report and
Recommendation after Petitioner requested leave to amend the Petition
and to delete the unexhausted claim. By Order of July 31, 1997, this case
was transferred to United States Magistrate Judge Margaret A. Nagle.

2. Petitioner's counsel (Monica Knox) filed a declaration (“Knox
Decl.”), in which she discussed the results of an investigator's interviews
of most of the jurors from Petitioner's trial. None of the jurors who were
interviewed recalled seeing the leg brace on Petitioner. (Knox Decl. at
2.) The foreman recalled seeing “leg irons” worn outside Petitioner's
pants and around his ankles; however, given that was not the type of
restraint Petitioner wore at trial, Petitioner's counsel conceded that the
foreman ‘is apparently mistaken.” (Id.) Petitioner's counsel stated that
she did not believe that she could present evidence at a hearing to show
that the jurors at Petitioner's trial were aware that he had been restrained.

(Id, at 3.)

On November 30, 1999, the Court issued a R

, 9, eport and

pyr ee recommending that the Amended Petition be denied

| ismissed with prejudice. On December 15, 1999, Petitioner filed

his Objections to the Report and Recommendation. Pursuant to Rule

3.2.11 of the Local Rules Governing Duties of Magistrate Judges, the

Court, upon consideration of Petitioner's Objections, now issues an

Amended Report and Recommendation. For the reasons set forth herein,

it Is again recommended that the Amended Petition be denied and that
this action be dismissed with prejudice.

PRIOR PROCEEDINGS

On May 20, 1992, in the Los Angeles C
Petitioner was convicted by a jury of tien cand of owe + sea
(California Penal Code (“P.C.””) § 187), one count of attempted murder
(P.C. §§ 664/187), two counts of attempted robbery (P.C. §§ 664/211)
and, two counts of assault with a deadly weapon (P.C. § 245). (Return
Ex. A; Clerk's Transcript Vol. IV, lodged by Respondent on May 5,
1997 ( CT”), at 1037-1055.) The jury also found to be true allegations
that Petitioner personally used a firearm on all counts and personally
inflicted great bodily injury on a non-accomplice on one count. (Id.)
Petitioner was sentenced to prison for a total of 40 years and 4 months
to life. (Return, Ex. A at 41; CT at 1166.)

Petitioner appealed his conviction and mane On
_ Peti . On April 13, th
California Court of Appeal for the Second fentine | District,
unpublished opinion, affirmed the judgment. (Return, Ex. B at 59.)
Petitioner sought review in the California Supreme Court, which

summarily denied review on July 12, 1995, wi itati
anaaal y , without citation to authority.

PETITIONER'S CONTENTIONS
Petitioner raises four claims for relief in this Court:

1. The trial court violated Petitioner's Sixth and Fourteen
. . . th
Amendment rights by coercing the jury to reach a verdict. (Amended

Petition at 10.)

2. Petitioner's Fourteenth Amendment right to be present at all trial
proceedings, and his Sixth Amendment right to the assistance of counsel,
were violated when the trial court held conferences with jurors in
Petitioner's absence. (Amerded Petition at 25.)

3. The trial court violated Petitioner's Sixth and Fou enth
Amendment rights by requiring him to wear a leg brace during trial.
(Amended Petition at 40.)

4. Petitioner's right, under the Fifth, Sixth and Fourteenth

foneuts, occ ted by theyuary S: tinap cles vitlaea when
the trial court excused a juror without good cause. (Amended Petition at
53.)

DISCUSSION
1. verning S lew

Federal habeas corpus relief is available to a state prisoner only if
the prisoner is “in custody in violation of the Constitution or laws or
treaties of the United States. 28 U.S.C. §§ 2241, 2254. The Amended
Petition, which relates back to Petitioner's original filing date of July 16,
1996, clearly is subject to the amendments to the federal habeas corpus
statutes contained in the “Antiterrorism and Effective Death Penalty
Act” (“AEDPA”). See, ¢.g., Duhaime v. Ducharme, 200 F.3d 597, 600
n.3 (9th Cir. 1999) (a habeas petition filed after April 24, 1996, is
governed by 28 U.S.C. § 2254, as amended by the AEDPA. The AEDPA
imposes additional restrictions on the granting of habeas relief to state
prisoners with respect to any claim adjudicated on the merits in state
court. In such circumstances, the writ “shall not be granted” unless the
state court's 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 evidence presented in the State court
proceeding.

28 U.S.C, § 2254(d). See also Williams v. Taylor, USS. , 120
S. Ct. 1495, 1523 (2000).

It is clear that a state court decision cannot be overturned on federal
habeas review merely because it conflicts with Ninth Circuit precedent
on a federal constitutional issue. The Supreme Court in Williams
conclusively opined that Ҥ 2254(d) (1) restricts the source of clearly
established law to this Court's Jurisprudence”. 120 S. Ct. at 1523. See
also V vy. Lin sey, 212 F.3d 1143, 1154 (%h Cir 2000) (“the
only definitive source of clearly established federal law under AEDPA
is the holdings (as opposed to the dicta) of the Supreme Court”), petition
for cert. filed 69 U.S.L.W. 3156 (August 11, 2000) (No. 00-255).

In reviewing the habeas petition, “[a] federal court must presume
the correctness of the state court's factual findings.” Bains _v. Cambra,
204 F.3d 964, 972 (9th Cir. 2000). The petitioner bears the burden of
rebutting that presumption by clear and convincing evidence. 28 U.S.C.
9 2254(e)(1).

On his direct appeal to the California Court of Appeal, Petitioner
raised each of the four claims which are -pleaded 2s Grounds One
through Four in the Amended Petition, and the California Court of
Appeal issued a written, reasoned opinion addressing each of the claims.
(See Return, Ex. B at 59-93.) The California Supreme Court summarily
denied his petition for review which raised these same four claims. (Id.
at 44-94.) “[W]here there has been one reasoned state judgment
rejecting a federal claim, later unexplained orders upholding that
judgment or rejecting that same claim rest upon the same ground.” Ylst
y. Nunnemaker, 501 U.S. 797, 803-804, 111 S. Ct. 2590, 2594 (1991).
* Accordingly, to determine the reasonableness of the California

3. The California's summary, or “silent,” denial of relief
constituted a denial of Petitioner's claims on the merits. Hunter v.

Supreme Court's rulings on Petitioner's four habeas claims, this Court
must analyze the opinion of the California Court of Appeal and must
apply the standard of review articulated in Section 2254(d).

— oe -oercion Claim Does Not W Federal
Hebeas Relief

By his first claim, Petitioner contends that the verdict against him
was coerced, in violation of the Sixth Amendment's guarantee of a fair
and impartial jury and the Fourteenth Amendment's guarantee of the
right to due process. (Amended Petition at 10.) In particular, Petitioner
alleges that various comments made by the trial judge a

anctitutes ou en ‘to. cjutys ow chved “re ec. ft.
a particular juror (Eve Radclit?) into rendering a guilty verdict on we
counts (murder and attempted murder). (Amended Petition at 11-23.)

An Allen charge “is traditionally understood as ‘an instruction to
consider the point of view of others, when the jury has reached an
impasse in its deliberations,” United States v. Wills, 88 F.3d 704, 716
(9th Cir. 1996) (cit . om.) See Jiminez v. Meyers, 40 F. .3d 976, 979 (9th
Cir. 1993), cert. denied, 513 U.S. 810, 115 S. Ct. 60 (1994) and 516 U.S.
813, 116 S. Ct. 63 (1995) (stating that an Allen charge instructs the
jurors to work towards unanimity and the minority to reexamine its
views). “In the archetypal Allen charge context, the judge instructs a
deadlocked jury how to strive for a unanimous verdict. Weaver v.
Thompson, 197 F.3d 359, 365 (9th Cir. 1999). Here, Petitioner concedes
that the trial court's comments “were »ot the typical or classic Allen
instruction.” (Amended Petition at 20.) Rather, relying on the above-

Aispuro, 982 F.2d 344, 348 (9th Cir. 1992), cert. denied, 510 U.S. 887,
114 S. Ct. 240 (1993). That denial is presumed to rest on the same
grounds as set forth in the California Court of Appeal's opinion. YIst,
502 U.S. at 804-804, 113 S. Ct. at 2594.

4. An Allen charge derives its name from Allen v. United States,
164 U.S. 492, 17 S. Ct. 154 (1896), in which the wupne Court
approved its use.

cited Jimenez decision, Petitioner argues that the trial Judge's conduct,
viewed in its totality, had the effect of constituting a “de facto” Allen
charge. (Id. at 20-21) See Jimenez, 40 F.3d at 980 (finding that a trial
court's comments and conduct, when viewed in the context of the
particular case, constituted a “de facto Allen charge”). The court
examines Petitioner's first claim in light of the following underlying
matters from the record.*

A. The Underlying Proceedings

5. In Jimenez, a pre-AEDPA decision, the Ninth Circuit noted
that the question of jury coercion is a mixed question of law and faci
which requires de novo review on appeal. 40 F.3d at 979. However, the
Supreme Court has made clear that the applicability of the AEDPA's
Section 2254(d) deferential standard of review does not turn on pre-
AEDPA distinctions made between questions of law, questions of fact,
and mixed questions. The Section 2254(d)(1) standard applies whether
the issue is a mixed question of law and fact or otherwise. See Williams,
120 S. Ct. at 1516-1521. Thus, even if this Court's review of the record
with respect to Petitioner's Allen charge claim is de novo, the Court still
must adhere to the Section 2254(d)(1) review standard in determining
whether the state courts’ rejection of this claim warrants federal habeas
relief.

Here, the California Court of Appeal issued a reasoned opinion
on Petitioner's juror coercion claim, with several pages of factfinding.
(Return, Ex. B at 79-84.) Under Section 2254 (e) (1) that Court’s
"determination of factual issues is presumed to be correct. Accordingly,
the Court has carefully considered the California Court of Appeal's
opinion. However, Petitioner, in his Amended Petition, Traverse, and
Objections, has discussed the underlying factual record at length, and
draws many wholly different conclusions from that record that chose
drawn by the California Court of Appeal. Accordingly, in order to
adequately consider Petitioner's arguments, the Court has independently
reviewed the trial record for purpose of his Juror coercion claim and, in
this Section, has set forth some of the salient facts from the record, in
addition to those found by the California Court of Appeal.

At the end of the day on Tuesday, May 12, 1992, the jury at
Petitioner's trial already had deliberated for six days and for over 22
hours, and had returned verdicts on all but two counts. (CT at 891, 896,
900, 902, 904, and 913.)® At that time, Juror Eve Radcliff (“Radcliff”)
sent a note to the trial court requesting to be dismissed due to “health
problems.” (CT ot 919. 913: RT at 3311A-3313A.) Thetrial indge noted
that “the aor ys are ot prescat, neither is the defendi.i. but that he
was “going to consider her health problems an emergency at this time.”
(RT at 3311A.)

The trial judge then met with Radcliff ,” who explained that the
seriousness of the charges left her unable to “make snap decisions, and
that sho wes beginning to fee? “a litle ourned out.” (Tait 2.4.) The
trial judge reminded her that the jury would have a day off and asked if
she could continue. After she agreed, the trial judge stated his
appreciation and noted that, if she were unable to complete her service,

6. Based on the record, the following appears to be the status of
the jury's deliberations as of the end of the day on May 12, 1992: (1) the
jurv had not yet returned verdicts on Count One and Two (second degree
mur#2r and attempted murder) ; and (2) the jury already had reached and
returned guilty verdicts on two counts of attempted first degree
residential robbery, and three counts of assault with a deadly weapon,
and had returned not guilty verdicts on two counts of forcible rape while
acting in concert, two counts of oral copulation by force, one count of
attempted first degree residential robbery, and seven counts of first
degree residential robbery. (CT at 890-913, 1037-1055; Reporter's
Transcript on Appeal, Vols. 1, 16 and 23, lodged by Respondents on
May 5, 1997 (“RT") at 3375, 3390; Return, Ex. A, at 23-40)

7. When Radcliff met with the trial judge and he noted that there
were “two counts” remaining, she corrected him, stating: “Actually, we
have one. The other one is on the table. We haven't turned it in yet.” (RT
3312-A.) Given subsequent events, however, it appears that there were
two counts on which verdicts had not yet been reached, as of that time.
In any event, whether there was only one open count or were two open
counts does not change the Court's conclusions set forth infra.

“[t]hey have to start deliberations all over again with another person.”
(Id.) Radcliff responded, “That's what I understand,” and she and the
trial judge then shared a joke in response to the judge's inquiry “{i]s there
anything I can do?” (Id. at 3313A.)

On the next afternoon (Wednesday, May 13, 1992), the trial judge
summoned counsel and the jury after receiving a note fiom Jury
Foreperson Wyke (“Wyke”). Wyke's note stated that: “we can no longer
deliberate”; Radcliff “does not appear to be able to understand the rules
as given by you”; “all my fellow jurors [are] questioning her ability to
understand the rules and her ability to reason”; and he believed
continuing would result in a hung jury based on “one person's inability
to reason or desire to be unreasonable.” (RT at 3313.) After the trial
judge read the note on the record before the jury and counsel, Wyke
stated that there was a disagreement among the jurors over the rules of

law. (Id, at 3313-3314.) The trial judge and Wyke then engaged in the
following colloquy:

THE COURT: 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 delibe-ate. They must deliberate
and follow the rules and laws as I :.ate it [sic] to them.

Now, if they interpret the rules differently, then that's why we
have a jury system.

THE FOREPERSON: I think we're almost at the

nondeliberating state. We might be able to get through the
day, but she's exercising her right as a juror.

(RT at 3314.)

| When one juror asked if the court could “clarify any of the law,” the
trial judge declined to do so. (RT at 3314.) The trial judge then said to
Wyke that he only wanted to know “two numbers and that’s all” and that
he did not want to know “for or against.” (Id. at 3315.) Wyke responded
that the last vote was “11 to 1" and then further stated, sua sponte that

‘

ae
the prior vote had been “10 and 2.” The trial judge then inquired of
Wyke whether further deliberations might help. oting that the jurors
had the next day off and that “it's been a long ti i wu people.” (Id.
at 3315-3316.) a
eden, ¢ ae .
TUE FOREPERSON: Yes. Weare getting tired of each othe” ©
comes down to interpreting «he law 4s-given to us, and ii ,
one person's interpretation is inflexible in their view, I don't

know that it will do us any good. \ a
JUROR NO. 8 [Radcliff]: Or different. i
HD 7TOUK : Has me person bee: Gotihciats 5? and &
discussing

THE FOREPERSON: Yes. I'm not questioning that. We might
give it a shot and come back Friday morning. If it continues

we are going to be hung.

THE COURT: 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.

FOREPERSON: Neither do I.

(RT at 3316.)

One of the jurors then inquired whether the instructions stated
“something about not taking in your morals and your feelings and
beliefs” or not letting “other lifestyles conflict with our decision.” After
noting that any such references would have occurred in the juror
questionnaire or on voir dire, the trial judge stated:

You must accept and follow the law as I tell you even though
you disagree with that law. accept and follow the law as I tell
you. You’re required to do that.

BEST AVAILABLE COPY

11

(RT at 3316-3318.) Radcliff then asked if there was “something
regarding morals in the instructions that you gave us” and the trial judge
responded “no.” (RT at 3318.) She then asked, “You cannot give us an
interpretation of the law?” The judge again responded “no.” (Id.)
Radcliff stated, “it’s up to us individually to interpret the law and apply
it.” The trial judge responded:

What you do is -- like I think what the instructions were -- you
a [sic] 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
[sic] given to you in those instructions. They do this or not do
this? Was it proven beyond a reason able 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 of not guilty of that charge.

(RT at 3318-3319.)

At that point, Petitioner's counsel requested a conference with court
and, out of the jury's presence, expressed concern that the trial court's
comments might affect how the jurors “interpret” or “view the law.” (RT
at 3319.) After discussion with counsel, the trial judge agreed to cut off
further discussions with the jurors regarding the above-noted juror
questions and to simply advise them to determine the facts and apply the
law as he stated it to them. (RT at 3319-3324.) The trial judge then
advised the jury:

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 that law. You can't make up your
own law. You must accept and follow the law as I state it to
you.

(RT at 3325.) The conference then ended.

After the Thursday, May 14, 1992, day off, jury deliberations
resumed on the Friday. On that afternoon, Radcliff wrote a second note

12

to the trial judge, requesting to be dismissed because of the “public
beating” she had received on the previous Wednesday and “the beat up
[sic] experienced in the deliberation room from the jurors. (RT at 3366.)
Radcliff indicated that she was feeling distress and disrespect from the
other jurors” as a result of Wyke's note, although she concluded her note
by stating that “the »recedures have improved in their nature” but that
She cud “recched 2 noim ©. ance.” Goa tO not Cehewe che oot Se
objective. (Id. at 3367.) The trial judge met with counsel outside of the
presence of the jury. Over defense counsel's objection that Radcliff was
being singled out and that this created pressure on her to “change her
vote or be excused,” the trial judge spoke to Radcliff in chambers, with
counsel present, to determine whether she was able to continue

‘y cuting. (UA ww 2370) Radelif! i. Ue teu dot she thought the ot
jurors were displeased with her “responses,” even though she believea
that the jury was deliberating. (Id. at 3371.) She noted that the problem
seemed to be a “personality thing,” noting “in particular” that she and
another juror (“‘an ex cop”) interpreted the law differently which “causes
a lot of conflicts.” (Id. at 3370-3371.) Radcliff noted that “things have
improved today and that the jury was using a new system in its
deliberations. (Id. at 3372.) Moreover, Radcliff indicated that she and
all of the jurors were “really trying.” (Id.) Radcliff, several times, stated
that she was deliberating. (Id. at 3370-3373.)

The trial judge then spoke alone with Foreperson Wyke in
chambers. Wyke stated that all jurors were still deliberating and that,
following the day off, the jurors had attempted to resolve personality
issues, and he had apologized to Radcliff for his Wednesday note. (RT
at 3375-3377.) Wyke also stated that all of the jurors, including Radcliff,
were deliberating. (Id. ) Deliberations then resumed. The jury was given
that following Monday off,” and reconvened and deliberated until 3:50
p.m. on Tuesday, May 19, 1992. (CT at 916.) At that tine, the jury
returned its verdict on one of the final two counts remaining. (Id.)” The

8. The trial court gave the jury the day off to accommodate
another juror’s need to attend work-related training. (RT at 3377-3378.)

9. Petitioner alleges that Radcliff sent another note to the trial

13

following morning, the jury returned its verdict on the last count
remaining. (CT at 1056.)

B. The Framework For Review

An Allen charge is not, in and of itself, a basis for federal habeas _
relief “An Allen charge is, on occasion, a legitimate and highly useful
reminder to a jury to do its duty.” United States v. Plunk, 153 F.3d 1011,

1027 (9th Cir. 1998) (quoting Rodriguez v. Marshall, 125 F.3d 739, 750
(9th Cir. 1997)). The Ninth Circuit repeatedly has opined that the use of

an Allen charge must be upheld unless the record clearly shows that the
charge impermissibly coerced the jury. See, e.g., Plunk, 153 F.3d at
1027; United States v. Hemandez, 105 F.3d 1330, 1333 (9th Cir. 1997);
United States v. Lorenzo, 43 F.3d 1303, 1307 (9th Cir. 1995). A Court

may not grant habeas relief unless it is “clear from the record” that an
Allen charge was given and “had an impermissibly coercive effect on the
jury.” Rodriguez, 125 F.3d at 750.

The question of whether or not an Allen charge was so
‘impermissibly coercive” as to warrant federal habeas relief is resolved
by looking to the totality of the circumstances, i.e., a consideration of
whether the state trial court's actions and statements were coercive under
the totality of the circumstances. Jiminez, 40 F. 3d at 980. See also,

Ww v. 489 U.S. 231, 237, 108 S. Ct. 546, 550 (1988)
(claim of improper i. coercion due to Allen charge requires review of
the charge in its context and under all of the circumstances). In making
this determination, the Ninth Circuit repeatedly has stated that it looks

to the following four factors: (1) the form of the instruction; (2) the
period of deliberation following the Allen charge; (3) the total time of

judge on May 19, 2000, which requested a meeting alone with the judge
and which bore a notation, in another's handwriting, that the request was
canceled. (Amended Petition at 14.) Petitioner does not provide any
record citation for this note, however, and the note is not contained
within the record for this action. (See CT and RT, passim.) The minute
order for May 19 also does not reference the note, unlike the references
to juror notes in minute orders for other days. (CT at 917.)

14

jury deliberation; and (4) the indicia of coerciveness or pressure upon the
jury. See, e.g., Weaver, 197 F.3d at 365, Plunk, 153 F.3d at 1027; Wills,
88 F.3d at 717; United States v. Estacio, 64 F.3d 477, 482 (9th Cir.
ty United States v. Cuozzo, 962 F.2d 945, 951 (9th Cir. 1992) . See

also United States v. Daas, 198 F.3d 1167, 1180 (9th Cir. 1999)
( cahomee factors (2) and ( 3), so that the test 's a three-part test).

C. The State Court’ Conclusion That Jury Coercion Had Not Been
Seem Malter @ To Mor 1 yr

learly Establi Ww

The California Court of Appeal noted that Petitioner res BPR
cl on: the trial jv ‘ge's staten.om* uo Radctiff tha deitheraus 1.3 vou
have to begin anew if she were excused; his failure to clarify the law in
response to a juror's question; and his failure to respond to Radcliff's
final note. Petitioner also asserted that the trial judge should have
advised the jurors that: they should consider Radcliff's views; neither
Radcliff nor the other jurors need surrender their convictions; and the
court's remarks were not intended to suggest any verdict which the judge
deemed appropriate. (Return, Ex. B at 82-83.) The California Court of
Appeal rejected each of these claims after deciding that: the comment to
Radcliff regarding deliberations beginning anew, although injecting an
irrelevant factor, did not impose improper pressure on her, there was no
error in the trial judge's failure to further clarify the law in light of the
instructions given; and there was nothing improper in urging the jury to
consider the matter further with a view to reaching agreement. The court
concluded, “[T]he comments made and not made by the court to the jury
did not coerce a particular verdict or deny Packer his constitutional
rights.” (Id. at 84.)

This Court must determine whether the California Court of Appeal's
decision “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) (14% The Court, thus, must determine whether the

10. In Williams, the Supreme Court made clear that the
“contrary to” prong of Section 2254(d) (1) applies only to cases in which

15

court's decision was not only erroneous or incorrect, but objectively
unreasonable as well. Williams, 120 S. Ct. 1522; see also Delgado v.
Lewis, _ F.3d 2000 WL 1191040 at *5 (9th Cir. August 23,
2000).

1. Jtis Unclear That Plaintiff's Juror Coercion Claim

As an initial matter, the Court expresses doubt as to whether
Petitioner's first claim is cognizable under the AEDPA's standard of
review which, in this context, provides for relief only if the state court's
decision is an unreasonable application of clearly established law as
determined by the United States Supreme Court. The Supreme Court has
never held that a “de facto Allen charge” -- a concept invented by the
Ninth Circuit -- is unconstitutional. Indeed, the highest court has never
ruled that such a doctrine exists. In Jimenez, a divided Ninth Circuit
‘panel relied on Ninth Circuit “totality of the circumstances” decisions”
to create the doctrine of a de facto Allen charge. 40 F.3d at 980-981. In
doing so, the majority concluded that, because the “totality of the
circumstances” test was well-established, the Supreme Court's decision

the state court “arrives at a conclusion opposite to that reached by” the
highest court or “decides a case differently than this Court has on a set
of materially indistinguishable facts.” 120 S. Ct. at 1523. As neither
circumstance exists here, the “unreasonable application of” prong of the
AEDPA governs the Court's analysis.

11. Ina series of recent cases, the Ninth Circuit has opined that
this standard requires proof of “cicar error” on the state court's part, i.e.,
that a federal habeas court must be left “with a definite and firm
conviction that an error has been committed.” Van Tran, 212 F.3d at
1153; see also, Delgado, 2000 WL 1191040 at *5.

12. The Ninth Circuit did note that the Ninth Circuit's “totality
of circumstances” test is based on Jenkins, 380 U.S. at 446, 85 S. Ct. at
1060, and also cited to Lowenfeld, 484 U.S. at 237, 108 S. Ct. at 550.
Jimenez, 40 F.3d at 980 n.2.

16

in Teague v. Lane, 489 U.S. 288, 109 S Ct. 1060 (1989), was
inapplicable. 40 F.3d at 981. In dissent, Justice Kozinski charged that the
majority, through its creation of the de facto Allen charge concept,
“invents a whole new doctrine,” in violation of Teague. Id.—

The Supreme Cor-t has rade clea~ thet law created by a federal
appellate cemt ms oo.) “sheaily scowblisi cs “eceral baw” Mien the
meaning of the AEDPA. William, 120 S. Ct. at 1523 (Section 2254 (d)
(1) “restricts the source of clearly established law to this Court's
jurisprudence”); see also Van Tran, 212 F.3d. 1154 (“we may not, of
course, reverse a state court's decision because it is inconsistent with a
rule established by a Ninth Circuit case”). In Williams, the Supreme

‘on hdnove th tthe’ ty. son Ue opplicelon” prong may ences. 2s
an unreasonable failure to apply a legal principle to a “new context.” 120
S.Ct. at 1521. The Ninth Circuit recently has construed the Williams test
of “objective” unreasonableness to mean that “a state court's decision
can be unreasonable even if it addresses a question not previously
addressed by the Supreme Court or by the lower courts.” Van Tran, 212
F.3d at 1154 n. 16. Here, of course, the California Court of Appeal's
decision was rendered after Jimenez was decided.

The Court is unconvinced that a state court's failure to extend the
Supreme Court's decisions in Allen, Jenkins, and Lowenfeld so as to
invoke the concept of a de facto Allen charge in this case can be said to
constitute an objectively unreasonable failure to apply clearly established

13. In brief, the Supreme Court's Teague opinion commonly is
construed to stand for the proposition that new constitutional rules of
criminal procedure will not be applied retroactively on collateral review
of a final conviction. 489 U.S. at 310, 109 S. Ct. at 1075.

14. The Court notes that, in dicta, the Ninth Circuit last year
cited Jimenez for the proposition that courts have applied an Allen
charge analysis in circumstances where “improper coercion is implicit
in the circumstances, rather than explicit in a formal instruction.
Weaver, 197 F.3d at 365.

17

United State Supreme Court holdings” -- the standard required for
AEDPA review. However, in light of the existence of the Jimenez
decision at the time of the California Court of Appeal's decision, the
Court will assume, arguendo, that a state court's failure to find the
existence of an impermissibly coercive “de facto” Allen charge possibly
could constitute an unreasonable application of clearly established
Fedcral law under Section 2254 (ora: cas v Lior «cc red follow. cach Ofte alcged uvstances -
coercion. As discussed above, Petitioner first complains about a
comment which the trial judge made to Radcliff at the end of the day on
May 12, ie., regarding starting deliberations over again with another
person if Radcliff were to be excused. On the next day, May 13, the jury
deliberated for approximately two and a half hours before the open court
session at which the foreperson's note was read. There were no further
deliberations on the day following that session. (CT at 915.) After a day
off, the jurors resumed deliberations on May 15, and deliberated for
approximately two and half hours before breaking for lunch and before
Radcliff sent her second note to the trial judge.““ After the trial judge
and counsel met with Radcliff that afternoon, the jurors deliberated for
a little over a half hour. (CT at 916.) After the weekend and an additional
day off, the jurors recommenced deliberations on May 19, and
deliberated for slightly over four hours before returning a verdict as to
Count 2. (CT at 917.) The jurors recommenced deliberations on the
morning of May 20 and, after 12 minutes, returned a sealed verdict as to
Count One, (CT at 1056.) In sum, the jurors deliberated for
approximately eight and a half hours after the alleged commencement of
coercion before returning a verdict as to the first outstanding count.

16. The record indicates that the jurors spent the first hour of that
period discussing “personality issues,” but recommenced their
deliberations at 10:00 a.m. (RT at 3372, 3375.)

23

Third, the Court must look at the total time of jury deliberations.
Here, the jury deliberated for approximately 31 hours total -- for slightly
over 22 hours before the first event alleged to constitute one of the Allen
charge circumstances and for over eight hours after this event. The jury
had rendered verdicts on 17 counts prior to this first alleged Allen charge
event. In fact, the jury deliberated for approximately 15 and a half hours
befure reaching verdicts on these 17 counts, and then deliberated another
approximately six and a half hours before the alleged first coercive event
on May 12. The fact that the jury deliberated for an additional eight and
a half hours after the alleged commencement of coercion strongly
suggests that the verdict reached was the result of sincere deliberations,
and not coercion. The Ninth Circuit consistently has found that much
shorter periods of deliberation following an Allen charge did not indicate
an impermissibly coercive effect on the jury. See, e.g., United States v.
Daas, 198 F.3d 1167, 1180 (9th Cir. 1999) (one hour out of a total
deliberation time of five hours); Plunk, 153 F.3d at 1027 (one and one-
half hours); United States v. Easter, 66 F.3d 3d 1018, 1023 (9th Cir.
1995) (two and one half hours); Lorenzo, 43 F.3d at 1307 n.2 (five and
one-half hours); United States v. Bonam, 772 F.2d at 1451 (one and one-
half hours); United States v. Beattie, 613 F.2d, 762, 766 (9th Cir. 1980

(three and one-half hours). The over eight hour time period between the
asserted commencement of coercion events and the jury's return with
verdicts on Counts | and 2 does not indicate coercion, particularly when
compared to the previous 15 and a half hour deliberation period for the
other 17 counts.

Fourth, and finally, the Court must examine the indicia of coercion
or pressure upon the jury. Petitioner contends that the events of May 12-
19, 1992, when considered together, prove that Radcliff was coerced to
render guilty verdicts on Counts | and 2. The Court has carefully
considered each of Petitioner's arguments and cited authorities,”

as 17. The Court notes that, with the exception of Jimenez,
Petitioner relies upon various Ninth Circuit decisions involving express
rather than de facto Allen charges. A-blind reliance on the conclusions
of coercion reached in those decisions is ill-advised in this case given
that here, as Petitioner concedes, there was no express Allen charge.

24

including those set forth in Petitioner's Objections to the Court's original
Report and Recommendation. The Court also has examined each of the
following alleged indicia of coerciveness, both separately and in toto, in
the context of all the trial's events.

feliberstion vouk have Wbogke a ow iffshe vere or cused, % as ub
considered and inappropriate. Indeed, the California Court of Appeal
found that the remark “injected an irrelevant factor,” although did not
constitute “improper pressure.” (Return, Ex. B at 83.) In United States
v. Bonam, 772 F.2d 1449, 1450 (9th Cir. 1985), a case in which an
actual Allen charge was given, the Court held that the trial court should
not havs indicted io the jurv thy afeve utero te reacts th cas:

would have to be retried and, thus, would cause additional expense to be
incurred. The Court further noted, however, that “the addition of these
comments did not necessarily make the instruction more coercive and
require reversal,” and declined to find jury coercion. Id. at 1450-1451.
Here, the trial judge did not make any comment regarding the incurrence
of additional expense. Moreover, before the judge's ill-considered
comment was made, Radcliff already had stated that she could continue
deliberating. The remark, in context, did not impose the kind of improper
pressure on a juror who is advised that his or her dismissal will require
retrial of the entire case and cause additional expense and then is asked
and/or directed to continue deliberating. Accordingly, the Court does not
find that the remark was impermissibly coercive on its own, although
recognizing that the remark must be considered in the context of the
subsequent events.

With respect to the open-court session on May 13, the trial court's
inquiry into the numerical division of the jury clearly was
constitutionally permissible, as long as the context of the inquiry does
not suggest that jurors were coerced into changing their views as a result.

See, e.g., Rodriguez, 125 F.3d at 749; Jimenez, 40 F.3d at 981; Locks,

Coercion is more likely when jurors have been instructed with the
substance of an actual Allen charge, i.e., they have been told that they
should reexamine their views and/or that they must reach a verdict.

25

703 F.2d 403, 407 (a trial court's simple inquiry into the numerical
division among the jurors, without more, was not impermissible).““ As
discussed in the preceding section, in this case the trial court made a
simple inquiry into the jurors’ numerical division without asking about,
or expressing approval of, mavement or inquiring into how the vote
started and ended. The trial judge inquired into the last ballot” count
only, and specifically stated, I want to know two numbers and that's all.”
(RT at 3315.) The trial Judge's comment immediately following this
inquiry -- which ignored the foreperson's sua sponte statement as to a
prior vote and which ignored the numerical split information obtained --
indicates that his inquiry was designed to determine whether further
deliberations might assist the jurors in reaching a verdict, rather than to
elicit how the jurors stood on the merits of the case. Id. This type of
inquiry has been expressly approved by the Supreme Court and this
Circuit. Lowenfield, 484 U.S. at 240, 108 S. Ct. at 552; Rodriguez, 125
F.3d at 749. Accordingly, the trial court's inquiry into the numerical
division of the jury was not, in and of itself, improperly coercive.

Petitioner, however, argues that the inquiry and the remaining trial
court comments at the May 13 open-court conference were coercive
because the trial judge knew that Radcliff was the hold-out juror, and
Radcliff knew that the trial court was aware of her identity. In various
Ninth Circuit decisions involving explicit Allen charges, the Court has

18. In Locks, the Ninth Circuit concluded that Brasfield v.
United States, 272 U.S. 448, 47 S. Ct. 135 (1926), in which the Supreme
Court stated an apparent per se rule against inquiry into a jury's
numerical division, represented an exercise of the Court's supervisor
powers rather than a constitutionally-based holding applicable to state
proceedings. Locks, 703 F.2d at 405-407. The Supreme Court has
confirmed this analysis and has held that the Brasfield decision is not
required to be followed when reviewing state proceedings on habeas

rg petition. Lowenfield, 484 U.S. at 239-140 n.3, 108 S. Ct. at 552
n.3.

19. Again, the record shows that the trial judge was not aware
whether the 11-1 split was for or against conviction. (RT 3315-325.)

26

noted that, when coupled with an express Allen charge and other factors
indicative of coercion, the judge's knowledge of a holdout juror's identity
and the juror's awareness of that knowledge are factors that can indicate
coercion. These decisions have recognized that, in such circurnstances,
the hold-out jurors may perceive the Allen charge as being directed at
them. Sc e.g., United States v. Ajibove, 961 F.2d. 892, 894 (9th Cir.
1992). ') suoport ct his argument, Yetuioner relies on United States y.
Sae-Chua, 725 F.2d 530 (9th Cir. 1984). In Sae-Chua, the district court
received a note from the foreperson, which stated that eleven jurors
favored conviction but that one juror persisted in voting not guilty
despite his belief that the defendant was guilty. The district court then
polled the jurors in the courtroom as to whether they believed further
dstiberaiton vould result ina verfic Fun cee jures B20ne
aftirmatively. The district court then gave an Allen charge, and the jury
returned a guilty verdict several hours later. Id. at 531-32. The Ninth
Circuit heid that, in that circumstance, “the charge could only be read by
the dissenting juror leveled at him” and that the Allen charge given was
unduly coercive. Id. at 532.

Sae-Chua is factually distinguishable in several critical respects.
First, and critically, the trial judge did not levy an Allen charge in this
case. Second, the trial judge was not aware of whether the majority
favored acquittal or conviction. Third, although the trial judge
presumably knew that Radcliff was the hold-out juror, unlike in Sae-
Chua he did nothing to indicate that Radcliff needed to reconsider her
position. Indeed, he expressly stated that the jurors had “a right to
disagree with everybody else” and that they were entitled to interpret the
rules differently, although all must deliberate and follows the rules and
the law as stated by the court. (RT 3314.) As discussed previously, the
trial court merely questioned whether the jury was still deliberating, and
whether further deliberations would help. (RT at 3312-A, 3315-16,
3372, and 3377.) After Radcliff herself and Wyke repeatedly confirmed
that the jue» was still deliberating, the trial judge permitted them to do
so. (Id.) This conduct by the trial court, coupled with the lack of an Allen
charge, did not constitute the coercive circumstances found in Sae-Chua.

Petitioner, however, vigorously complains that the trial court took

27

no measures to counterbalance the potential for coercion in this case.
The Court disagrees. The trial court instructed the jurors with CALJIC
17.40, which explicitly admonishes the jurors that “[e]Jach of you must
decide the case for yourself’ and “do not decide any question in a
particular way because a majority of the jurors, or any of them, favor
such a decision.” (CT 1015.) And again, when the note from Wyke was
read to the jury, the trial court staied that “the juror has a right to do that

. a right to disagree with everybody else,” and “if they interpret the
rules differently, then that's why we have a jury system.” (RT at 3314.)
Contrary to Petitioner's suggestion, no court has held that coercion must
be found if no counterbalancing instruction is given at the same time as
the alleged Allen instruction. The absence of such counterbalancing
instruction is but one factor under the totality of circumstances test for
coercion. Here, there was a counterbalancing instructior given prior to
the events of May 13, and acontemporaneous reminder by the trial judge
that the jurors were entitled to disagree with each other.

Petitioner also complains that the trial judge's reiteration of a jury
instruction to the effect that the jurors are the sole judge of the facts, but
must accept and follow the law as stated by the court (RT 3325) was a
“clear ‘lecture sounding in reproof,’” to Radcliff, and a direction to her
to change her vote. (Amended Return at 20; Objections at 7.) Petitioner's
characterization, while dramatic, is not borne out by a fair reading of the
record. The situation was that a juror (Mr. Bulpitt) made certain
statements indicating that the jury instructions encompassed such
matters as not allowing morals, feelings, beliefs, other lifestyles,
personal opinions, etc., to affect the juror’s decisions and that the jurors
must follow the law as given by the court and not by the attorneys. In
direct response to Mr. Bulpitt's statements, the trial court then attempted
to clarify the juror’s duty to follow the law even if they disagree with it.
As described above, Radcliff then asked a question regarding whether

the instructions encompassed “morals” and whether the judge could give

the jurors an interpretation of the law. (RT at 3316-3318.) The trial judge
responded by again stating that the jurors must apply the facts to the law
as stated for the jurors in the jury instructions. (RT at 3318-3319.) After
defense counsel objected to the trial judge's comments on the ground that
he had misstated the jurors' duties and after he requested that the trial

28

judge clarify its instructions, the trial judge simply instructed the jury,
as a whole, that they are the sole judges of the facts and must apply the
law to those facts and must accept and follow the law. (RT at 3319-
3325.) Petitioner's characterization of these events as a lecture directed
specifically at Radcliff is inaccurate.

i inaliy, Petiioncs cougjae aS the the Wii yes we ACL aoe Maw
respond to notes sent by Radcliff on May 15 and 19. As noted above,
with respect to the alleged May 19 note, there is no evidence of any such
note in the record before the Court. Petitioner alleges that the May 19
note indicates that it was canceled at 9:25 a.m., the same time jury
deliberations recommenced that day. cr at 917.) If this is so —

© gh ore ques: was etnecicd. the uit Judge’ 93. cted fail

respond cannot be faulted. With respect to the May 15 note, Pecihonar
characterization of the trial judge's response again mischaracterizes the
record. At her meeting with the trial judge and counsel, Radcliff
repeatedly indicated that she and the other jurors were deliberating and
that they all were “really trying.” She also indicated that the problem
was “personality”-related with respect to another juror and that “things
have improved today.” (RT at 3370-3373.) With respect to her
statement in the note that she did not believe she could be “objective,”
the trial judge advised counsel that, as a result of meeting with Radcliff,
“I think she is very objective,” a conclusion with which defense counsel
readily agreed. (RT at 3373.) In the Court's view,’a fair reading of the
record of the trial judge's meeting with Radcliff on May 15 reveals that
the trial judge did listen very carefully to her comments and concerns
and then concluded that, notwithstanding the emotional tenor of her note,
she was properly deliberating and could be objective. (RT at 3370-3373.)

After independently reviewing the record, the Court concludes that
the totality of the circumstances does not indicate that Petitioner's verdict
was coerced. Petitioner has not shown that a conclusion that an Allen
charge actually was given is warranted here, much less that the jury was
coerced by the matters alleged in the Amended Petition or in any of
Petitioner's other filings in this case. Having considered the totality of
the circumstances, the Court concludes that the state court's conclusion
that the trial court “did not coerce a particular verdict” was not an

29

unreasonable application of clearly established Federal law as
determined by the United States Supreme Court. Accordingly, the
standards of Section 2254(d) have not been net, and habeas relief is not
warranted as to Petitioner's first claim for relief.

III. Petitioner’s Right To Be Personally Present At Trial Proceedings

By his second claim, Petitioner contends that he was denied due
process and his right to the assistance of counsel, under the Sixth and
Fourteenth Amendments, when the trial court held five conferences with
jurors in his absence. (Amended Petition at 25.)

A. The Underlying Proceedings.

On May 12, 1992, the trial court held two conferences with
members of the jury in chambers. Petitioner, defense counsel and the
prosecutor all were absent from these two meetings.” The first, with
juror Sharon Schweda (“Schweda”) , concerned problems she was
having with her employer as a result of her jury service. (RT at 3306A-
3310A.) The trial court showed Schweda a draft of a letter to her
employer and, after Schweda approved the draft, promised to leave a
copy for her by the end of the day. (Id.) The second meeting on that day
was that held with Juror Radcliff, as discussed supra, which was deemed
by the trial court to involve a “health emergency.” (Id. at 3311 A-3313A.)

On May 15, the court held three separate conferences with jurors in
chambers. (RT at 3366-3383.) Counsel, but not Petitioner, were present
at each of ‘these meetings. The first conference was with Radcliff, who
had made another request to be dismissed from the jury, as described in
Section II above. (Id. at 3370-3373.) The trial court discussed her request
and the progress of deliberations. (Id.) As also discussed above, the
judge and counsel then met with the foreperson (Wyke) and discussed

2 20. In a previous conference, however, both the prosecutor and
Petitioner's counsel had consented to the trial court meting with Juror
Schweda without their presence. (RT at 3310.)

30

the progress of deliberations with him. (RT at 3374-3377.) The third
conference on that day was with Schweda regarding the continuing
problem she was having with her employer and her question regarding
her “rights” as a juror with respect to her employment situation. (Id. at
3378-3383.)

a. Ais Ue menork For & avis’

Under clearly established United States Supreme Court precedent,
a criminal defendant has the constitutional right to be present at those
stages of trial when “his presence has a relation, reasonably substantial,
to the fullness of his opportunity to defend against the charge.
Kentucky v, Stivea, 42 11.0 739, 745, 1978 © 2.°°. 2667 1987)
(quoting, Snyder v. Massachusetts, 291 U.S. 97, 105-00, 54 S. Ct. 330,

17, 104 S. Ct.
332 (1934)). See, also, Rushen v. Spain, 464 U.S. 114, 117,
453, 455 (1983) (right to be present attaches “at all critical stages of the

trial.”) However, the right does not attach “when [his] presence would
be useless, or the benefit but a shadow.” Kentucky v. Stincer, 482 U.S.
at 745, 107 S. Ct. at 2667 (quoting Snyder, 291 U.S. at 106-07, 54S. Ct.

at 332); see also United States v. Gagnon, 470 U.S. 522, 527, 105 S. Ct.
1482, 1484-85 (1985) (constitutional right of presence not implicated if

defendant cannot do or gain anything by being present).

This “presence” right stems from two sources: the Sixth
Amendment right to confront witnesses or evidence and the Fourteenth
Amendment right to due process. Kentucky v. Stincer, 482 U.S. at 736-
739, 745, 107 S. Ct. at 2662-2664, 2667. See also Gagnon, 470 US. at
$26, 105 S. Ct. at 1484. Here, the juror conferences in question did not
involve witnesses or evidence against Petitioner. Thus, no Confrontation
Clause-based “presence” right is implicated. United States v. McCoy,
F.3d 495, 496 (7th Cir. 1993).However, Petitioner's due process right is
implicated by his claim.24

21. Petitioner also contends that he was deprived of his Sixth
Amendment right to be represented by counsel when the trial judge held
the two juror conferences on May 12 outside the presence of his counsel.
(Amended Petition at 26 n.10; Traverse at 29, n. 23.) Petitioner's

31

Under the Due Process Clause, a defendant has no constitutional
right to be present at an ex parte conference in chambers with a juror,
absent a shewing that his absence undermined the fairness of the
proceedings.”

contention is meritless. The Cronic rule, on which Petitioner relies, is
that a Sixth Amendment violation occurs when there is a “complete
denial of counsel” at a “critical stage of . . . trial.” United States v.
Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047 (1984). For the reasons
discussed below, it is clear that neither May 12 conference involved a
“critical stage” of Petitiorc:’s ‘rial, as that concept lias been d: Sned by
the Supreme Court, requiring either his or his counsel's presence. See,
e.g., Gagnon, 470 U.S. at 527, 105 S. Ct. at 1484. Moreover, as to the
Schweda meeting, as noted above, the trial judge gave counsel the
opportunity to participate, and both counsel agreed that the meeting
could go forward without their presence. As to the Radcliff meeting, the
trial court properly deemed the situation to involve an emergency, due
to Radcliff's assertion of health problems. The Court cannot accept
Petitioner's implicit claim that the trial judge should have ignored and/or
delayed addressing a juror’s apparent illness, at the end of the trial day
because his counsel was not available.

22. The Court notes that Petitioner's reliance on Rogers v.
United States, 422 U.S. 35, 95 S. Ct. 2091 (1975), and Shields v. United
States, 273 U.S. 583, 47 S. Ct. 478 (1927), as the principal bases for his
claim is misplaced. (Amended Petition at 25; Traverse at 26; Objections
at 12.) The Rogers decision was based on Rule 43 of the Federal Rules
of Criminal Procedure, which provides that a criminal defendant has the
right to be present at every “stage of the trial.” 422 U.S. at 39, 95 S. Ct.
at 2094. Rule 43, however, only applies to federal trials. The Shields
decision also did not involve a constitutionally based “presence” claim,
such as that asserted here. 273 U.S. at 587, 47 S. Ct. at 479. Moreover,
the Supreme Court's subsequent Gagnon decision makes clear that any
current reliance upon Shields for the proposition that a defendant has an
absolute right to be present at any and all communications between
judge and jury is unfounded.

32

[T]}he mere occurrence of an ex parte communication between
a trial judge and a juror does not constitute deprivation of any
constitutional right. The defense has no constitutional right to
be present at every interaction between a judge and a juror. . . .

Gagron, 470 U.S. at 526, 105 S. Ct. at 1484 (quoting Justice Stevens's
conces™' | opwn'c. io Rusu, 404 Lat 1Z9-12e, 204 S.C ars *

see also United States v. Olano, 62 F.3d 1180, 1190-1191 (9th Cir. 1995)
(a judge's private meeting with a juror in chambers failed to establish a
constitutional violation under the Fifth or Sixth Amendment).

For purposes of Petitioner's second claim, the governing test is as
Y je Ws:

“(T]he presence of a defendant is acondition of due process to
the extent that a fair and just hearing would be thwarted by his
absence, and to that extent only.”

Gagnon, 470 U.S. at 1526, 105 S. Ct. at 1484 (quoting Snyder, supra).

Shown Was _Neither Contrary To, Nor An Unreasonable

Applicat Ww

In the California court, Petitioner raised the same contentions made
here. The California court of Appeal rejected these contentions:

[A]ll of the conferences complained of either involved
requests for relief from jury service on grounds of personal
hardship, external employment-related, problems, or the

23. On state appeal, Petitioner also argued that he was entitled
to be present at a sixth conference, involving Juror Ferguson. (Return,
Ex. B at 85.) Although his fourth federal habeas claim involves the
dismissal of that same juror, his “presence” error claim, as asserted in
this Court, does not claim error based on his absence from a conference

with Ferguson.

33

continuation of deliberations. All the incidents complained of
thus had no reasonable, substantial relationship to any specific
substantive legal issue or to Packer's ability to present a
defense.

Packer complains that his absence from the conferences
compiained of deprived him of the ability to consult with
counsel, bring unspecified factors to counsel's attention or give
unspecified advice or suggestions to counsel. Packer further
urges that his mere presence would have served the
psychological function of keeping the jurors more honest and
candid and ensuring their resolve. However, such speculation
unfairly assumes certain: inedequacies hy defense counsel and
the jurors, of which there is no evidence in the record.
Accordingly, even assuming any error, it was harmless beyond
a reasonable doubt.

(Return, Ex. B at 86-87.)

Petitioner argues that the state court's decision was erroneous
because he had a constitutional right to be present at all”
communications with the jury. (Amended Petition at 30-31.) Petitioner
argues that he was entitled to be present at the above-described five juror
conferences because each involved a question as to the juror's ability to
deliberate fairly and as to the juror's impartiality. Petitioner is mistaken.

Petitioner's claim is legally foreclosed by the United State Supreme
Court's decision in Gagnon. In that case, a juror expressed concern
because he had noticed Gagnon sketching portraits of the jury, conduct
which his attorney admitted had occurred. Gagnon's attorney asked the
trial judge to question the juror, to determine whether the sketching had
prejudiced the juror against Gagnon. The trial judge, along with
Gagnon's counsel, met with the juror, and inquired as to the juror's
concerns and whether he could continue as an impartial juror. The trial
judge explained that Gagnon meant no harm, that the sketching had been
confiscated, and that the sketching would cease. 470 U.S. at 523, 105 S.
Ct. at 1483.

The Supreme Court rejected Gagnon's claim that his due process
right was violated because he was not present at this conference. The
Court concluded that the presence of neither the defendants nor their
counsel was required to ensure fundamental fairness or a reasonably
substantial opportunity to defend. Notwithstanding that the conference
related to a concer> of juror bias. the Court conclyded thet tt “was not
He sort oF eve | v duct! every deivadant had a right pet ooastt atone
under the Fifth Amendment,” reasoning that the defendants “could have
done nothing had they been at the conference, nor would they have

gained anything by attending.” 470 U.S. at 527, 105 S. Ct. at 1484-1485.

In Olano, 62 F.3d at 1190-1191, the Ninth Circuit similarly rejected

1. ¥ ~,y¢@ “sal ae S« 2,

> ee
‘ *s

ose wath a teror
constituted “presence” error. The conference occurred following the
juror’s advice that her daughter had accepted employment with an entity
of which one defendant formerly was Chairman of the Board. Noting
that the conference in question, as in Gagnon involveu a question as to
the juror’s impartiality, the Ninth Circuit concluded that Gagnon was
dispositive of the issue and held that the defendant's Fifth and Sixth
Amendment rights had not been violated.

Gagnon is equally dispositive here. Petitioner has asserted that the
“very purpose” of the five juror conferences was to “ascertain the
impartiality” of the jurors, “prompted by some information raising a
possibility that the juror could no longer fairly judge the case based
solely on the evidence.” (Amended Petition at 31, 37.) Accepting
Petitioner's characterization for the moment, that “very purpose,” of
course, renders these conferences “indistinguishable from the meeting
in Gagnon,” as well as that in Olano. Olano, 62 F.3d at 1191. Asa
result, the California Court of Appeal did not unreasonably apply clearly
established Federal law, as explicated by the United States Supreme
Court, when it declined to find that Petitioner's absence from these five
conference did not violate his due process rights. - Indeed, that court
committed no error at all, and arguably would have erred had it found
otherwise, in light of the controlling precedent of Gagnon.

Even absent the controlling Gagnon decision, however, Petitioner's

second claim must be rejected. With respect to the third through fifth
juror conferences in issue, Petitioner was represented by his counsel.
There is nothing in this record whch suggests that Petitioner's interests
were not adequately protected by his counsel's presence. Indeed,
Petitioner has not alleged that his counsel provided ineffective assistance
at any of these conferences. Hence, there is no basis for concluding that
a “fair and just hearing [was] thwarted by his absence,” as Gagnon
requires. 4760 U.S. at 526, 105 S. Ct. at 1484. See also McCoy, 8 F.3d
at 497 (due process not violated by defendant’s absence from various
conference when their counsel's presence adequately protected their
interests).

Petitioner, however, with the benefit of hindsight, srgues that he
was deprived of consulting with his counsel and participating in strategic
decisions regarding the subject matter of the five conferences. Petitioner
identifies two things he allegedly would have done had he been present:
he would have asked that juror Schweda be excused and he would have
asked that the trial court instruct all jurors to hold onto their
conscientiously- held beliefs and opinions and not surrender to majority
pressure. (Amended Petition at 36-36; Petitioner's Declaration appended
to Amended Petition at 3-4.) Again, however, Petitioner has not alleged
that his counsel was ineffective for failing to do such things. Moreover,
the Court concludes that any such actions, even if they had been taken,
would have had no effect on Petitioner's trial.

Contrary to Petitioner's contention that juror Schweda certainly
would have been excused had he requested such (Amended Petition at
36 n.15), the Court concludes, having carefully reviewed the transcripts
of the two conferences with her, that it is highly unlikely that any such
request would have been granted. Additionally, the instruction which
petitioner alleges he would have requested already had been given to all
jurors, through their instruction with CALJIC 17.40, as discussed above.
The Court simply is not persuaded by Petitioner's after-the-fact,
selfserving claims of things he would have done had he been present at
these conferences. That Petitioner may have been an unusually
participatory client during his trial, as he and his trial counsel contend

(see Declaration of Jeffrey Brodey appended to Amended Petition at 1;

36

Petitioner's Declaration at 3), does not change the scope of the
constitutional rights afforded him. ae
Petitioner argues additionally that he was unconstitutionally
deprived of the psychological influence his presence would have had at
each of these five conferences (Amended Petition at 37.) Petitioner relies
-n the Tenth Circuit's ring in Larson v. Tansy, 911 F.2d 392. 394-36
(%, Car. 190) car’ 2 DT. Civenit'. Gecisicu in Uni oe ot 228 2.
Wade, 441 F.2d 1046, 1050 (D.C. Cir. 1971) (Id. at 30, 33.) Neither
decision is controlling or even persuasive here. In both decisions, the
defendant was absent from the reading of jury instructions and the
rendering of the verdict. In Larson, he also was absent from closing
arguments. These are “crucial stages” of a trial when a defendant's
yeserce ‘vay 42 thoug!\t io exert a psycho! ical uapaci + fie (ees
jurors to assume the burden of their decision and affirm it in the presence
of the defendant. Larson, 911 F.2d at 395. In addition, there was a
reasonable possibility that the jury in both cases may have adversely
speculated about the defendant's absence in the courtroom at these
crucial stages of trial. Id. Significantly, the Court in Larson held that the
defendant had no due process right to be present at the jury instruction
conference. Id. Here, the five conferences were held with single jurors
outside of the courtroom, and did not involve crucial trial stages. There
is no basis whatsoever for concluding that the individual jurors -- who
each met with the judge to discuss personal matters -- would have
speculated adversely about defendant's absence from these brief

meetings.

In any event, Petitioner's “psychological function” argument is
refuted by Gagnon. There, in a conference directly pertaining to a
question of a juror's ability to be fair and impartial -- the sane issue
which Petitioner repeatedly asserts was involved here -- the Supreme
Court held that the defendants had no right at all to be present, for they
could have done nothing had they been at the conference, nor would they
have gained anything by attending.” 470 U.S. at 527, 105 S. Ct. at 1484-
1485. Under the AEDPA, Gagnon controls here, not pre-AEDPA
intermediate appellate decisions from two other Circuits.

For the reasons set forth above, Petitioner has not established any

BEST AVAILABLE COPY '

37

constitutional right to have been present at the five conferences between
the trial court and individual jurors. As he had no such right under either
Sixth or Fourteenth Amendments, his absence cannct support any
finding of constitutional error.

Even if, arguendo, the error claimed by Petitioner could be found
to have implicated his constitutional rights, this type of error is subject
to the harmless error review standard. Rushen, 464 U.S. at 120, 104 S.
Ct. at 426. The question then is whether, in light of the record as a
whole, the jury conferences held in Petitioner’ s absence “had substantial
and injurious effect or influence in determining the jury's verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S. Ct. 1710, 1722 (1993).
Althovg: the decision of whether a constitutionel error was harmless
ultimately is one of federal law, the state courts’ decisions regarding the
substance of an ex parte communication and its effect on the jury are
considered findings of historical fact which are entitled to the AEDPA's
deference and presumption of correctness. Rushen, 464 U.S. at 120, 104
S. Ct. at 426; see also 28 U.S.C. S 2254(e)(1).

The California Court of Appeal found that these juror conferences
had no “reasonable, substantial relationship to any specific substantive
legal issue or to [Petitioner's] ability to present a defense.” (Return, Ex.
B at 86.) Based on this finding, that Court held that Petitioner had no
federal constitutional right to be present at these conferences. (Id. at 84-
87.) The Court of Appeal further concluded that any purported error was
harmless because Petitioner's contention that his presence would have
served a psychological function was speculative and assumed certain
inadequacies of defense counsel and jurors, of which there was no
evidence in the record. (Id. at 86-87.) The Court's own review of the
record reveals ample support for the California Court of Appeal's
conclusions, for all of the reasons set forth above. Given the nature of
the juror conferences involved here, there simply is no reason to believe
that Petitioner's absence had a substantial and injurious effect or
influence in determining the jury's verdict. Accordingly, even if “error”
occurred as a result of his absence (which the Court emphatically
believes is not the case), any such “error” was harmless.

38

The state courts’ rulings on Petitioner's “presence” error claims did
not involve a decision that was contrary to, or which involved an
unreasonable application of, federal law as determined by the Supreme
Court. Accordingly, pursuant to Section 2254(d), Petitioner is not
entitled to habeas relief on his second claim.

ly ita cout wt Not Viciate Pettouer S oth te. uo le teed i

By his third claim, Petitioner contends that his right under the Sixth
Amendment to assist his counsel and his right to due process under the
‘yerteenth Amcud nex. re violated \vhon the trial court ieguivea am
to wear a leg brace throughout his trial. Although the brace was not
visible to the jury, Petitioner contends that it caused him pain and
interfered with his ability to participate in his trial. (Amendea Petition

at 40-52.)

24. Petitioner apparently contends that he has a Sixth
Amendment right to “meaningfully participate at trial” by providing
assistance to his counsel free from any restraint which might affect this
right. (Amended Petition at 40, 49.) Petitioner, however, has cited no
authority which supports this proposition. The Supreme Court decisions
cited by Petitioner (e.g., at Amended Petition at 49-50) do not stand for
the proposition that a prisoner has a Sixth Amendment right to be free
from restraints (as opposed to a due process right to be free from visible
restraints in certain instances). That Petitioner may have been an
unusually active participant in assisting his counsel, as he and his
counsel allege, does not establish any independent Sixth Amendment -
based constitutional right to be free of restraint. In short, the Court finds
it dubious that Petitioner's third claim, to the extent that it is based on the
Sixth Amendment, is a cognizable constitutional claim at all, much less
one which meets the AEDPA's requirement of a violation of clearly
established Federal law as determined by the Supreme Court. 28 U.S.C.

§ 2254(d).

39

A. The Underlying Proceedings

The California Court of Appeal made factual findings regarding the
proceedings which led to Petitioner being placed in a leg brace. (Return,
Ex. B at 88-89.) Those findings are entitled to a presumption of
correctness, unless rebutted by clear and convincing evidence, 28 U.S.C.
2254(e)(1). Petitioner argues that the trial court's determination rested on
inaccurate evidence. (Traverse ai 36-37.) In order to adequately address
Petitioner's third claim, the Court has independently reviewed the record
and sets forth the following pertinent matters from the record.

A day after the jury was sworn, the trial court held a hearing
regarding a request by the Los Angeles County Sheriff's Department
(“Department’”’) that Petitioner wear a leg brace during trial. (RT at 164.)
The trial court first heard argument of counsel concerning whether the
Department's request would be considered by the Court pursuant to an
in camera proceeding. Significantly, while Petitioner was present,
Petitioner's counsel voiced his suspicion that the Department's request
might pertain to Petitioner's friendship with James (“Doc”) Holliday, a
“prospective witness.” Petitioner's counsel noted that he was not sure if
Holliday would be called as a witness but “we're hoping that he “will
be.” (RT at 167.)” The trial court also heard the testimony of Sergeant

25. In this proceeding, Petitioner repeatedly has argued that the
trial court's determination regarding the leg brace was based on
inaccuyate evidence because Holliday was not going to be called as a
witness and that he and his counsel already had made that determination
before the leg brace issue arose. (See, e.g., Amended Petition at 44, 47
n.21; Petitioner's appended declaration at 2; Traverse at 37; Objections
at 14.) In light of his counsel's express representation otherwise at the
time the leg brace issue arose, made in Petitioner's presence, Petitioner's
argument not only is erroneous, based on the record, but also is
misleading. Petitioner's related contention that, had he and his counsel
known what about the nature of the Department’s concerns, they would
have advised the trial court that Holliday would not be a witness, is
equally disingenuous. Clearly, Petitioner's counsel had a suspicion as to
the impetus for the Department's request yet, in response, expressly

40

Bruce Fogherty, of the Department, about the nature of the leg brace
proposed. (RT at 164-171.) The trial court decided to hold an in camera
hearing, due to possible security concerns, to hear the Department's
concerns. (Id. at 166, 171.)

At the in camera hearing, Servcant Foghe-tv described the reasons
for the Department's request. /.ccording .o Foghe. ty, Fetitioncs ha: an
established relationship with Holliday, one of Petitioner's witnesses and
a long time leader of a prison gang. (RT at 171A.) Holliday was serving
a life sentence without parole and was “a very high security risk” and
“high escape risk.” (Id.) The Department had received information from
its Special Investigations Bureau that “somebody connected with
Ho!liday has said that when he gets to L.A., tha’ *tuffis going to hap, cu
He's got nothing to lose. He wants out. (Id.) Sheriff McCarty stated that
Holliday's wife had communicated with Petitioner, and that their
communication was: “I'll see [Petitioner] in Los Angeles, and that's
when it's going to happen.” (Id. at 172A.) Fogherty asserted that this
communication meant that “escape from court would be most likely.”
(Id. at 173A.) Deputy McCarthy stated that they did not want defense
counsel or defendants to become aware of the Department's efforts to
establish the source of this information “because if in fact they are
planning something, we want to be more prepared . . . .(Id. at 172A.) He
also stated that “an outside source might come in.” (Id. at 173A.) The
trial judge asked if there had been any past conduct by Petitioner.
Fogherty responded that the Department had a “special handling card”
on Petitioner, and that Petitioner was the “leader of several Blood gang
sets” and had caused some major gangrelated disturbances in jail. (Id. at
174A-175.) The trial court and the Department officers discussed the
nature of the proposed leg brace, including the fact that it would not be
visible or otherwise apparent to the jury and that Petitioner could move

confirmed to the trial court Petitioner's desire to call Holliday as a
witness. Petitioner was present at the time of that representation to the
Court. (RT at 167.) In short, Petitioner's attempt to create the specter of
an inappropriate trial court fact determination by way of his own after-
the-fact assertions of the purported state of the “facts” is belied by the
record itself.

41

his leg. (Id. at 175-176A.)

The hearing on the leg brace issue then continued in Petitioner's
presence. (RT 171.) Petitioner denied acting disruptively in custody,
although he admitted to being “young and unruly” in jail ten years
earlier. (RT at 174-178.) Petitioner testified that he was not present when
a recent jail disturbance took place, but admitted having knowledge that
the incident was going to happen, and that he had attempted to stop it but
was sent back to his cell and subsequently was unfairly held to have
caused or to be responsible for the incident. (Id. at 175-176.) The trial
court asked Petitioner how the proposed leg brace would affect him
during trial. Petitioner testified that he had experience with wearing leg
restraints in court, that they were “extremely uncomfortable,” and that
they “definitely inhibit one's ability to function, to communicate, you
know, to concentrate.” (Id. at 178.) The trial court heard testimony from
Fogherty that Petitioner was classified as “K-10,” which meant that he
was kept away from other prisoners and that, if he was going to be
exposed to other prisoners, he had to be escorted by a deputy and be
restrained and in handcuffs. (Id. at 180.)

B. The Framework For Review

Generally, a criminal defendant has a constitutional right to appear

~ before a jury free of visible shackles. However, a trial judge's decision

to shackle a defendant is not per se unconstitutional. 397 U.S. 337, 343-
44, 90 S. Ct. 1057, 1060-61 (1970); Rhoden II, 172 F.3d 633; Spain v.
Rushen, 883 F.2d 712, 716 (9th Cir. 1989). “Shackling is not per se
unconstitutionally prejudicial.” Rhoden I, 10 F.3d at 1459.

Shackling “is permitted when justified by an essential interest
specific to each trial.” Rhoden II, 172 F.3d at 636 (citing Holbrook v.
Flynn, 475 U.S. 560, 568-69, 106 S. Ct. 1340, 1345 (1986)). The trial
court has discretion to use shackles or other security measures when
circumstances dictate.” U.S. v. Baker, 10 F.3d 1374, 1401 (9th Cir.
1994). A serious threat of escape or danger to those in and around the
courtroom, or where disruption in the courtroom is likely in the absence
of shackles, are circumstances that warrant the shackling of a defendant.

4.

Allen, 397 U.S. at 343, 90 S. Ct. at 1060; see also Wilson v. McCarthy,
770 F.2d 1482, 1484-85 (9th Cir. 1985).

The Ninth Circuit has opined that, for a state trial court's abuse of
discretion in ordering shackling to be “of constitutional magnitude” and
‘hereby cognizat'e on federal habeas review, the state court must have

6: Gehacndeyysthode avlving sth cittenmacetabh.. db we
Ninth Circuit, and the shackling must have been of such a character that
the defendant was deprived of due process. Castillo v. Stainer, 983 F.2d
145, 147 (9th Cir. 1992), amended on denial of rehearing by 997 F.2d
669 (9th Cir. 1993). The Ninth Circuit has held that a trial judge must

follow atwo step process in determining whether to restrain a defendant. ©

A trial court's faiiure to follow this two step process constitutes en abuse
of discretion and gives rise to a cognizable due process claim. Rhoden
ll, 172 F.3d at 636; Collins, 109 F.3d at 1418. First, compelling
circumstances must persuade the court that some measure is needed to
maintain courtroom security. Collins, 109 F.3d at 1418; Baker, 10 F.3d
at 1401. Second, the trial judge must consider “less restrictive
alternatives to shackling” before ordering the defendant to be restrained.
Rhoden II, 172 F.3d at 636; Collins, 109 F.3d at 1418.

Rights Wer Vi

After discussing the record regarding the evidence presented to the
trial judge during the hearing regarding the leg brace, the California
Court of Appeal concluded:

The record at the hearing thus established Packer's potential
for nonconforming 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

43

[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 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
(Return, Ex. B at 89.)

1. Ibis Unclear That Plaintiff's Lez Brace Claim Is Cognizab!
Under the AEDPA.

As an initial matter, the Court expresses doubt as to whether
petitioner's third claim is cognizable under the AEDPA's standard of
review, which provides for relief only if the state court's decision is an
unreasonable application of clearly established law as determined by the
United States Supreme Court. As Petitioner concedes, the Supreme
Court has never directly held that use of leg brace is unconstitutional.
(Traverse at 33.) The three pertinent decisions cited by Petitioner (id.)

are Holbrook v. Flynn, 475 U.S. 560, 106 S. Ct. 1340 (1986), Estelle v.

Williams, 425 U.S. 501, 96S. Ct. 1691 (1976), and Illinois v. Allen, 397
U.S. 337, 90 S. Ct. 1057 (1970). Holbrook addressed the

constitutionality of deploying security personnel in the courtroom during
trial; Estelle addressed the constitutionality of forcing a defendant to
wear prison clothing during trial; and Illinois v. Allen addressed the
constitutional means for handling a disruptive defendant (binding and
gagging him, citing him for contempt, and removing him from the
courtroom). The Court, in Illinois v. Allen, addressed the concerns which
arise from binding and gagging a defendant, including the effect on the
jury of the sight of shackles and gags, the possible affront to the dignity
of the proceeding, and the affect of “total physical restraint” on the
defendant's ability to communicate with his counsel. 397 U.S. at 344,
90 S. Ct. at 1061. The Court, nonetheless, concluded that binding and
gagging a defendant might be fair and reasonable in some circumstances.

Id.

oe ae

44

The principal concern in these three decisions was the possibly
prejudicial and unconstitutional effect of the jury viewing these matters,
i.e., a defendant’s gag and shackles, a defendant’s jail clothing, or
security personnel. In short, the Court was concerned in each case about
visible circumstances affecting the jury's perception of a defendant. See
Rhoden II, 17? F 3d at 635 (disese'ng a] thee decisions) This concern
3 abst. Chere, @i* on that Feutiota Le. Conecue. thas he .t..0t prove
that the jury saw his leg brace. (see Knox. Decl. at 3; Objections at 16.)
Indeed, the Ninth Circuit decisions to date which have addressed the
constitutionality of shackling have held that no constitutional violation
occurs when the shackling is not visible to the jury. See, e.g., Rhoden II,
172 F.3d at 636; Castillo, 983 F.2d. at 149. Moreover, the concern noted
in Allen as to th. offect on a deferda:t's zhilky to communicate with
counsel was motivated by the effect of “total physical restraint,” Le., due
to gagging and binding. Petitioner did not experience any such total
physical restraint here: he was not gagged and wore a hidden leg brace
which allowed him to walk and other limited movement, including
standing.

As discussed above in connection with Petitioner's first claim, the
Supreme Court has made clear that law created by a federal appellate
court is not “clearly established Federal law” within the meaning of the
AEDPA but that the AEDPA’s “unreasonable application” prong may
encompass an unreasonable failure by the state court to apply a legal
principle to a “new context.” Williams, 120 S. Ct. at 1521. The Court
is unconvinced that the state courts’ failure to extend the Supreme
Court's decisions in Allen, Holbrook, and Estelle to encompass a leg

26. The Department demonstrated the functioning of the leg
brace to the trial court, noting that it is worn on one leg anc allows the
wearer to stand up or sit down” but apparently locks in a straight
position if the wearer stood up. (RT at 169-170.) In his declaration
submitted in this proceeding, Petitioner states that he could not rise when
the trial judge entered and that the “eyes of many of the jurors fell on me
at that time, increasing my humiliation and engendering further concern
about the jury's reaction to me.” (Petltioner’s Declaration appended to
Amended Petition at 2-3.)

45

brace which is not visible to the jury can be said to constitute an
objectively unreasonable failure to apply clearly established United
States Supreme Court holdings --- the standard required for AEDPA
review. However, given the various Ninth Circuit decisions addressing
shackling which involve restraints that are less than the Illinois v. Allen
“total physical restraint,” the Court will consider Petitioner's third claim
under the AEDPA's deferential standard of review, ie., whether the
California Court of Appeal's decision rejecting this claim constituted an
unreasonable application of clearly established Federal law under section
2254 (d) (1).

2. Petitioner’s Leg Brace Did Not Violate His Constitutional Rig!

As discussed in more detail above, the trial judge conducted
hearings to assess the potential security risks posed, and allowed
Petitioner to testify regarding the allegations of recent jail misconduct.
The trial court also allowed Petitioner to testify as to what effect the leg
brace would have upon him at trial, Department officers provided
information about a possible escape attempt which would occur during

27. In his Amended Petition, Petitioner appeared to argue that
he is entitled to relief under Section 2254(d)(1). In his Traverse, he
raised an additional argument that he was entitled to relief under Section
2254(d) (2) because the trial court's decision “was based on an
unreasonable determination of the facts in !.ght of the evidence presented
in the State court proceeding.” (Traverse at 36.) Here, of course, the
pertinent state decision is that of the California Court of Appeal. In any
event, the Court has independently reviewed the record in connection
with this claim and will determine whether habeas relief is warranted
under either subparts (d)(1) or (d)(2).

28. The Court notes, however, that Petitioner did not_have an
opportunity to testify about the possible escape attempt regarding Doc
Holliday and the alleged communication with his wife. However, given
the obvious security concerns posed by this information, it was not
unreasonable for the trial court to have considered this information on an
in camera basis, without disclosing it to Petitioner or his counsel.

46

Petitioner's trial.” Although the information, before the trial court may
not have presented the most compelling possible case for shackling, it
certainly formed a reasonable basis for concluding that a security risk
existed which warranted imposing restraints for the security of all
involved in Petitioner's trial, particularly given the non-visible and
mirin: 3'lv- 1 -~*rictive type of low br ce contenr'ated "tis imrortart to
wom tha chiar the Supren. © ar ao: ho winth Cine s.t has new that
a trial court must conduct a hearing, with sworn testimony and the
presentation of other evidence, and must make specific findings before
ordering that a defendant be shackled. Indeed, the Ninth Circuit
explicitly has refused to require such procedure before shackling may be
imposed constitutionally. Morgan v. Bunnell, 24 F.3d at 52 (citing
Jones v. Meyer, 899 F.2d 883, 885 (9th Cir. 1990)).

As noted above, Petitioner argues that the fact that Holliday was not
called as a witness and that no escape attempt occurred establishes that
the trial court relied on inaccurate evidence. Petitioner's assertions as to
after-the-fact events plainly are irrelevant to the pertinent question,
which is whether the trial court abused his discretion in ordering
shackling based on the information before him at that time. As also
noted above, at that time, Petitioner's counsel had expressly represented
to the trial court his intent to call Holliday as a witness if possible. (RT

29. “Shackling is proper where there is such a threat of escape.”
Morgan v. Bunnel, 24 F.3d 49, 51 (9th Cir. 1994).

30. Petitioner has argued that the record lacks any evidence
before the trial judge as to a possible escape attempt by Holliday.
(Objections at 14.) Having carefully read the transcript, the Court
concludes that the only fair and reasonable reading of the Department's
statements to the trial judge is that the Department was concerned about
an escape attempt by Holliday in connection with his appearance as a
witness at Petitioner's trial. Petitioner attempt to characterize the
Department's statements as indicating some sort of unspecified,
innocuous event is disingenuous. Petitioner's statement that this
information “had nothing to do with petitioner” because he was not
going to try to escape (id.) is equally disingenuous. The security risk

47

at 167.)

Based on the information before the trial court, it cannot be said that
it was error to have found that “compelling circumstances” existed
which reasonably indicated that some restraint was needed to maintain
courtroom security.2/’

[A] trial judge is charged with the grave responsibility of

ing the safety of the courtroom personnel, parties,
counsel, jury and audience and, where there is a material risk
that the defendant might attempt an escape, the public at large.
The judge has wide discretion to decide whether a defendant
who has a propensity for violence poses a security risk and
warrants increased security measures.

Morgan, 24 F. 3d at 51. In the present case, there was sufficient evidence
before the trial judge which reasonably would have raised these same
types of security concerns as to Petitioner and his trial. Accordingly,
there was no abuse of discretion by the trial court under the first step of
the Ninth Circuit's two-step process.

The next step of the analysis involves the question of whether the
trial court considered less restrictive alternatives to shackling. The trial

involved an escape attempt by a defense witness which might occur at
Petitioner’s trial. The trial judge had received information that petitioner
had been apprised of that possible escape attempt. In light of that
information, the trial judge reasonably could have concluded that there
was a risk to the safety of all present at the trial and that, given
Petitioner's asserted knowledge of the escape plan, he posed a security
risk. Morgan, 24 F.3d at 51.

31. Petitioner asserts that he is not challenging the process by
which the trial court ordered that he wear a leg brace, but complains that
the ruling was based on inaccurate and speculative triple hearsay.
(Amended Petition at 43 n.18.) As Morgan makes clear, however, this
argument is no basis for habeas relief on a shackling claim.

48

court noted defense counsel's concern about visible restraints and other
more restrictive restraints, received a demonstration of the proposed leg
brace, and opted for use of a leg brace that allowed for some movement
and which would be worn underneath the pant on one leg, undetectable
to a jury. (RT at 166, 170, 176A, and 199-200 The record clearly shows
that ne trial iudge was concerned about whether the brace would be
te > SO8 wh met. yu 4 Vii ade Pn. ers tc vez >
oul be restricted, and whether Petitioner would be uncomfortable.
(Id, at 169, 176A.) It also is clear that when the trial court returned after
having taken the leg brace issue under submission, he had considered the
harms attendant to shackling, which were identified in Illinois v. Allen
and in various intermediate appellate decisions. Thus, the court
smemed thet “tre 'eg brace will nm te vee to the jury; will sot
impede communications with [Petitioner's] lawyer; will not detract from
the dignity or the decorum of the judicial proceeding; will not be painful
to the defendant and . . . he will be seated before the jury enters and
remain seated until the jury leaves.” (Id, at 199-200.) The trial judge
further ruled that if the “defendant chooses to take the stand, he'll be on
the stand before the jury enters and remain on the stand until after the

jury leaves.” (Id. at 200.)

It is unclear, however, whether the trial judge considered any other
alternatives to the leg brace. If he did so, he did not expressly indicate
his consideration of such on the record. Of course, he was not required
to make specific findings in this respect on the record in order for
Petitioner's leg brace to be constitutional Morgan, 24 F.3d at 52; see also
Duckett v. Godinez, 67 F.3d 734, 749 n.7 (9th Cir. 1995), cert. denied,
517 U.S. 1658, 116 S. Ct 1549 (1996). The less restrictive alternatives
step ensures that the trial judge assesses the possible harms to the
defendant from shackling, including reversal of the presumption of
innocence, impairment of defendant's mental abilities, impeding
communication between defendant and his counsel, detracting from trial

32. The leg brace used was attached to one leg only with a velcro
strap, and was worn under the pant leg so as to be inconspicuous. It
allowed the wearer to stand up and sit down and for some leg movement,
but prevented running and fleeing. (RT at 169-170.)

49

decorum, and pain, and weighs these factors against other possible
alternatives. Morgan, 24 F.3d at 51; Castillo, 983 F.2d at 147. The trial
judge expressly did consider these factors, as noted above, before he
rendered his ruling. He also read the Ninth Circuit's decision in Spain v.
Rushen, supra, before rendering his ruling (RT at 172, 199) , which
discussed the less restrictive alternatives prong. 883 F.2d at 721.
Accordingly, although he did not state on the record what, if any, other
alternatives he considered, it appears that the trial court complied with
the second step of the process identified by the Ninth Circuit.2”

Even if, arguendo, it could be concluded that the trial court abused
its discretion in ordering Petitioner to wear the leg brace, the error, if
any, is deemed harmless. “A claim of unconstitutional shackling is
subject to harmless error analysis.” Rhoden J, 10 F.3d at 1459; Castillo,
997 F.2d at 669. The Ninth Circuit repeatedly has held that, even when
shackling has been improper, the error is harmless -- and no habeas relief
is warranted -- when the jury did not see or otherwise become aware of
the shackling. See, e.g., Rhoden II, 172 F.3d at 636; Duckett v. Godinez,
109 F.3d 533, 535 (9th Cir.), cert. denied, 522 U.S. 848, 118 S. Ct. 135
(1997); Castillo, 983 F.2d at 149.

As discussed above, an investigator, hired by Petitioner, spoke with
jurors and found that none of the jurors interviewed had, in fact, seen the
leg brace at Petitioner's trial. Petitioner withdrew his Request for an
Evidentiary Hearing upon receipt of the investigator’s findings.
Petitioner's counsel declared that she no longer “believe[d] [she would]

33. In Wilson, 770 F.2d at 1486, the Ninth Circuit noted “some
concern over the apparent failure of the trial court to consider less drastic
alternatives to shackling.” The Court, however, nonethetess found no
abuse of discretion because the habeas petitioner had failed to prove that
less drastic alternatives were available and that the trial judge had abused
his discretion by not implementing them, and denied habeas relief. [d.
Here, Petitioner has suggested possible alternatives (Objections at 16)
but, as in Wilson, has not established that they were available or that the
trial judge abused his discretion by not ordering them instead of the leg
brace under consideration.

—.-
- hvsical nain which Petitioner may have experienced as 4
vesuits tn le5 niacche wore. db. «ever, fre Cowut is bound by Deik tuc
law in this Circuit and the AEDPA standard of review. As “clearly
established federal law” as explicated by the Supreme Court presently
stands, a claim alleging non-visible shackling, coupled with pain and
interference with participation at trial, does not transform asserted
“error” into that which is not harmless and does not warrant federal
habeas relic © .

The California Court of Appeal's conclusion -- that the imposition
of a leg brace did not violate the Constitution -- was not contrary to, nor
did it involve an unreasonable application of, federal law as determined
by the Supreme Court. The decision also did not involve an unreasonable
determination of the facts in light of the evidence presented. Therefore,
Petitioner's assertion of unconstitutional shackling fails under Section
2254(d), and no habeas relief can be granted as to his third claim.

V. Petitioner’s Right To Be Tried by the Jury First Empaneled Was
Not Violated

By his fourth and last claim, Petitioner contends that his right to be
tried by the jury first empaneled, under the Fifth, Sixth and Fourteenth
Amendments, was violated when the trial judge dismissed a juror
(“Ferguson”) and replaced that juror with an alternate. (Amended
Petition at 53.) Petitioner argues that good cause did not exist to excuse
Ferguson because Ferguson herself stated that she could remain
impartial. (Id. at 58.) A criminal defendant has the right to have the jury
first empaneled attempt to reach a verdict. Wade v. Hunter, 336 U.S.
684, 689, 69 S. Ct. 834 (1949); United States v. Bates, 917 F.2d 388,
392 (9th Cir. 1990). Under California law, a trial court, upon good
cause, may discharge any juror found to be unable to perform the duties
of a juror at any time during trial. Cal. Penal Code § 1089. This

53

procedure, when, as here, followed by the trial court, preserves the
“essential feature” of the jury equired by the Sixth and Fourteenth
Amendments. See Miller v. Stagner, 757 F.2d 988, 995 (9th Cir) , as
amended, 768 F.2d 1090 (9th Cir. 1985

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385014_0567%3A3. Public record. Not legal advice.