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`UNITED STATES DISTRICT COURT
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`FOR THE EASTERN DISTRICT OF CALIFORNIA
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`RYAN JUDSON MOORE,
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`No. 2:19-cv-155-WBS-EFB P
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`Petitioner,
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`
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`v.
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`SCOTT FRAUENHEIM,
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`Respondent.
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`FINDINGS AND RECOMMENDATIONS
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`Petitioner is a California state prisoner who, proceeding with counsel, brings an
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`application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted in the
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`Solano County Superior Court of second degree murder (Pen. Code § 187, subd. (a)) and firearm
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`enhancements (§§ 12022.53 (b)-(d)). The instant habeas petition raises three claims. First,
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`petitioner argues that the state court erred when it concluded that his constitutional rights were not
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`violated in light of a juror’s prejudicial statements during deliberations. Second, he argues that
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`the state court of appeal unreasonably concluded that the jury’s discussions regarding his failure
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`to testify did not amount to federal constitutional error. Third, petitioner argues that the state
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`court of appeal unreasonably concluded that the instructions on involuntary manslaughter did not
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`relieve the prosecution of its burden of proof on the issue of malice.
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`For the reasons stated below, it is recommended that the petition be denied.
`
`/////
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`Case 2:19-cv-00155-WBS-EFB Document 30 Filed 12/04/19 Page 2 of 42
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`FACTUAL BACKGROUND
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`
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`Both petitioner and the respondent accept1 (and reproduce in their briefs) the state court of
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`appeal’s summation of the facts. ECF No. 1 at 16; ECF No. 19-1 at 9. The court has reviewed
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`the record and, having done so, finds nothing therein that clearly and convincingly rebuts the
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`summation. See Moses v. Payne, 555 F.3d 742, 746 n. 1 (9th Cir. 2009) (“Because this initial
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`statement of facts is drawn from the state appellate court’s decision, it is afforded a presumption
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`of correctness that may be rebutted only by clear and convincing evidence.”). Thus, the
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`summation is reproduced here:
`
`Prosecution Case
`
`On October 23, 2012, at around 7:00 or 8:00 p.m., Moore invited his
`friend, Timothy W., over to play a video game. Timothy walked to
`Moore’s house in Suisun City. When Timothy arrived at Moore’s
`house, he walked in through the open front door, used the restroom,
`then returned to the living room and sat down in a tan recliner. Moore
`was standing by a blue recliner. Brown, who was a friend of Moore’s
`and the girlfriend of Timothy’s uncle, was sitting on the couch.2
`Brown and Moore were acting friendly.
`
`Moore asked Brown to make him a burrito. She agreed and went to
`the kitchen. Meanwhile, Moore received a text message from his ex-
`girlfriend, which he showed to Timothy. Immediately thereafter,
`Moore looked “sad” and “down.” Timothy asked, “can we play the
`game now[?]” Brown returned from the kitchen, handed Moore a
`plate with the burrito, and sat down again on the couch. Moore put
`the plate down and picked up a bottle of tequila, which he guzzled
`“like it was water.” Moore’s sister called and asked to borrow a tool.
`After Moore refused, his sister hung up. Moore said, “my family
`hates me” and guzzled more tequila, still appearing sad.
`
`
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`1 Petitioner offers the qualification that he “accepts the Court of Appeal’s summary of
`procedural and general evidentiary facts except to the extent it is inconsistent with the express or
`implied factual averments and/or legal arguments set forth below.” ECF No. 1 at 16. Having
`reviewed the petition, the court concludes that nothing therein contradicts the summation.
`Petitioner does offer additional background discussing why the state’s own evidence militated in
`favor of an involuntary manslaughter verdict (id. at 20-22), but this additional context/argument
`does not contradict or otherwise invalidate the state court’s summation.
`
` 2
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` [footnote in original text] Moore was letting Brown stay at the house for a few days
`because Timothy’s uncle had obtained a restraining order against her.
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`Case 2:19-cv-00155-WBS-EFB Document 30 Filed 12/04/19 Page 3 of 42
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`While remaining seated in the recliner, Moore began playing with a
`butterfly knife. Timothy told Moore, who was two or three feet from
`him, not to play with the knife because it could “fly out of his hand
`and cut one of us.” Brown said, “‘he’s not going to cut me.’” The
`knife fell out of Moore’s hand and dropped to the floor. Moore stood
`up and went to a corner of the room, where he picked up a rifle
`without saying anything.3 Moore held the rifle with two hands and
`banged the barrel of the rifle against his head twice.
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`Timothy, who was still seated in the tan recliner, told Moore, “put
`the gun down.” Moore did not and, while standing about one foot
`away from Brown, aimed it at Brown’s front left side. Moore was
`still using both hands to hold the rifle—one hand was on the front of
`the gun and the other was on the trigger. Timothy told Moore to take
`his finger off the trigger. Brown said, “‘he’s not going to shoot me.’”
`Moore “fired the gun.”4
`
`Timothy asked Moore: “Did you shoot her? Did you shoot her? Like
`are you playing? Are you playing?” After being shot, Brown stood
`up and said, “‘this mother fucker shot me.’” She slumped and held
`her side. Moore dropped the rifle, went to Brown, and attempted to
`stop the bleeding and give her cardiopulmonary resuscitation.
`Fearing for his own life, Timothy ran to his uncle’s house a few
`blocks away. Because Timothy did not have a cell phone, he called
`911 from his uncle’s home, telling the dispatcher he witnessed “a
`white guy” shoot “a black female.” After calling 911, Timothy called
`his mother and asked her to drive him back to Moore’s house. There,
`Timothy told police he witnessed the shooting.5
`
`/////
`
`/////
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`/////
`
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`3 [footnote in original text] Moore’s brother-in-law lived with Moore and was not at home
`on the evening of the shooting. He testified that the rifle belonged to Moore; Moore initially kept
`the rifle in his bedroom; and, more recently, had kept the rifle in the living room.
`
` 4
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` [footnote in original text] The prosecutor asked Timothy if Moore said anything before
`firing the gun. Timothy answered, “No.” Timothy was then asked if he remembered testifying at
`the preliminary hearing that, before firing the gun, Moore said, “I’m going to shoot her.” After
`reviewing the preliminary hearing transcript and a statement he gave to a police officer on the
`night of the shooting, Timothy still could not recall stating as much. Timothy was asked, “Do
`you remember [Moore] saying ‘I’m going to shoot her then’ that evening before he fired the
`gun?” Timothy answered: “I don’t recall. I think so.” Finally, when asked if on the night of the
`incident he related to police the statement, “I’m going to shoot her then,” Timothy recalled having
`done so. On redirect examination, Timothy again stated he could not currently remember what
`Moore said on the night of the shooting.
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` [footnote in original text] On cross-examination, Timothy denied ever touching the gun.
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`Case 2:19-cv-00155-WBS-EFB Document 30 Filed 12/04/19 Page 4 of 42
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`Police Investigation
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`At 8:19 p.m., Moore called 911, telling the operator he killed
`someone by “accident” and had tried to give her cardiopulmonary
`resuscitation, but she was going to die. The dispatcher could not
`understand Moore and hung up after 30 seconds. Moore called back
`a minute later.
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`When Suisun City Police Department Officers James Sousa and
`David O’Brien arrived at the scene, Moore was standing in the
`doorway, smoking a cigarette, and talking on a phone. Moore was
`“frantic, confused, crying,” and had blood on his hands. On the living
`room floor, Sousa and O’Brien found Brown’s unresponsive body.
`Brown had been shot in the chest above her left breast. A video game
`controller was found on the tan recliner and a bottle of tequila was
`found nearby.
`
`The police officers searched “[e]verywhere” for a firearm—inside
`the house, inside the garage, and outside. It was dark, but Sousa used
`a flashlight to search the front yard, the backyard, as well as the side
`yard between Moore’s house and a neighbor’s house to the east.
`O’Brien searched the side yard on the west side of the house. No
`weapon was located.
`
`Later that night, while in a holding cell at the police station, Moore
`banged on his cell door and spontaneously told a police officer, “I
`killed her. I did it. He ain’t got nothing to do with it.” Moore
`repeatedly said it was an accident and he did not mean for it to
`happen. Later, when the same officer transported Moore to county
`jail, Moore again said the shooting was an accident. Moore, who
`appeared to be under the influence of alcohol, also said he was going
`to jail for a long time “because that’s what happens when you kill
`someone.”
`
`Forensic pathologist, Susan Hogan, M.D., determined Brown died
`from a gunshot wound to the chest. Hogan did not observe any soot
`or stippling on Brown’s clothing or body, which she would expect to
`see if the gun was fired within three feet of the victim.
`Defense Case
`
`Moore’s next door neighbor came home from his night shift early in
`the morning on October 24, 2012. Using a flashlight, he looked over
`Moore’s front yard for five minutes but did not see a gun. Around
`noon, the neighbor went back outside and saw a rifle in Moore’s front
`yard. Police collected the weapon. No latent fingerprints were found
`on the weapon, a .22-caliber rifle. The rifle had water spots on it that
`could have been produced by someone cleaning it. Low level DNA
`mixtures were found on the rifle, but the samples were insufficient
`for interpretation.
`
`4
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`Case 2:19-cv-00155-WBS-EFB Document 30 Filed 12/04/19 Page 5 of 42
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`On the night of the shooting, both Moore and Timothy were tested
`for the presence of gunshot residue.6 The results were positive for
`each. As gunshot residue can be found on a person’s hands after
`firing a weapon or being in the vicinity of a fired weapon, the
`shooter’s identity could not be determined. A blood sample was also
`taken from Moore at around 10:50 p.m. on October 23. The sample
`showed Moore had a 0.33 percent blood alcohol concentration
`(BAC).
`
`The defense firearms expert, criminalist Peter Barnett, examined the
`rifle and observed it had an intermittent problem where the trigger
`could be cocked simply by rotating the bolt, rather than pulling it
`back.7 Barnett’s test of the rifle’s trigger pull showed it requires three
`pounds of pressure to pull the trigger, which is somewhat lighter than
`in similar weapons. Barnett opined that if a person were to hold the
`rifle in the standard way with his finger on the trigger, and another
`person yanked it out of his hands with a sudden motion, that action
`could cause sufficient force for the gun to discharge.
`
`Psychiatrist Randall Solomon, M.D., testified as an expert regarding
`the effects of alcohol on the brain and memory. Solomon testified
`alcohol can impact memory after as little as two drinks, but the more
`a person drinks, the more likely it will cause memory problems, such
`as a “blackout”—a type of amnesia that happens when short-term
`memories do not get encoded as long-term memories. Short-term
`memory is not affected by alcohol. A person can still function during
`a blackout and observers might not know it is happening.
`Fragmentary blackout is the most common type. It creates holes in
`memory that a person might not be aware of until asked about
`something he cannot remember. A complete blackout is a period of
`no memory at all.
`
`At 0.3 percent BAC, Solomon opined there would be a greater than
`50 percent chance of a blackout. Not everyone would experience
`blackout at that BAC, but drinking very rapidly would also increase
`the probability. If BAC was at that level three hours after a person
`stopped drinking, his or her BAC necessarily would have declined to
`that level from an earlier, higher BAC. If someone was able to
`remember details an hour or three hours later then he would not have
`been in a complete blackout, unless he had been rehearsing these
`details in his short term memory the entire time.
`
`
`6 [footnote in original text] Timothy, who had been arrested before, later hired an attorney
`because he felt the police were pressuring him to “say something [he] had nothing to do with.”
`
` 7
`
` [footnote in original text] On cross-examination Barnett acknowledged that even though
`the rifle had an intermittent issue, the rifle would not be capable of firing unless the cartridge was
`inserted into the chamber. He also acknowledged that, in order to chamber a round, the bolt must
`be pulled up into the open position and pulled down all the way back, then pushed forward. The
`rifle is a single-action weapon, meaning the hammer has to be cocked and ready to fire before you
`press the trigger. in addition, before it can be fired, the safety has to be off.
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`Case 2:19-cv-00155-WBS-EFB Document 30 Filed 12/04/19 Page 6 of 42
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`Moore’s friend, Rashaun M.,8 testified that on the night of the
`shooting he was at a hospital in San Francisco with his daughter.
`Rashaun received a phone call from his family that night, during
`which he spoke to Timothy about what happened. Timothy did not
`mention a gun. After learning Brown had been shot, Rashaun told
`Timothy to go back to Moore’s house and call the police. Sometime
`later, Rashaun saw Timothy in person. Timothy then told Rashaun
`that, when Moore dropped the gun, Timothy picked it up, hopped
`over the couch, and ran with it to his uncle’s home.
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`Six character witnesses testified they knew Moore to be peaceful,
`reliable, generous, trustworthy, protective, and honest.
`People’s Rebuttal Case
`
`Angela M., Rashaun’s aunt and Timothy’s mother, testified she had
`been sitting outside the courtroom with Timothy during Moore’s
`trial. Rashaun approached her and said he was going into the
`courtroom. When Angela asked him not to, Rashaun said, “Auntie,
`I don’t give an ‘F’ about [Brown].” He added, “If I get called as a
`witness, I’m going to lie for my partner, to get my partner off.”
`Instructions and Closing Argument
`
`The trial court repeatedly informed the jury of Moore’s constitutional
`right not to testify and that no negative inference could be drawn
`from Moore’s exercise of the right.9 The jury also received
`instructions, among others, on premeditated first degree murder,
`express and implied malice second degree murder, accidental
`homicide, and involuntary manslaughter. Moore also requested, and
`received, an instruction that if, while unconscious as the result of
`voluntary intoxication, he killed without malice or intent to kill, the
`crime was not murder, but involuntary manslaughter. The jury was
`also instructed, as to crimes requiring specific intent, that it could
`consider the effect of Moore’s voluntary intoxication, if any, when
`determining whether he formed such intent.
`
`During closing argument, the prosecutor maintained Moore was
`guilty of either first or second degree murder. The People relied on
`both express and implied malice theories, arguing that Moore’s
`words and actions—aiming the rifle at Brown’s chest and pulling the
`trigger after being warned to put the gun down and take his finger off
`the trigger—showed either intent to kill or conscious disregard for
`human life.
`
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`8 [footnote in original text] Rashaun is Timothy’s cousin and Brown was Rashaun’s
`father’s girlfriend.
`
` 9
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` [footnote in original text] Specifically, the jury was instructed: “A defendant has an
`absolute, constitutional right not to testify. He may rely on the state of the evidence and argue
`that the People have failed to prove the charges beyond a reasonable doubt. Do not consider for
`any reason at all the fact that the defendant did not testify. [¶] Do not discuss that factor in your
`deliberations or let it influence your decision in any way.”
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`Case 2:19-cv-00155-WBS-EFB Document 30 Filed 12/04/19 Page 7 of 42
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`Defense counsel contended Moore’s behavior after the shooting was
`inconsistent with malice and showed the shooting was an accident or
`that, at most, Moore was guilty of involuntary manslaughter if he was
`either criminally negligent or unconscious due to voluntary
`intoxication. Counsel also claimed the jury could find the shooting
`was accidental by inferring Timothy’s involvement in a struggle over
`the rifle. In rebuttal, the prosecutor argued the defense’s theory of the
`case was inconsistent with the evidence.
`Verdict
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`The jury found Moore not guilty of first degree murder, convicted
`him of second degree murder, and found the firearm enhancements
`true. Moore filed a motion for new trial, which was denied after an
`evidentiary hearing. The trial court sentenced Moore to an
`indeterminate term of 40 years to life in state prison. A timely notice
`of appeal followed.
`ECF No. 20-9, Ex. C, at 2-8.
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`STANDARDS GOVERNING HABEAS RELIEF UNDER THE AEDPA
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`I.
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`Applicable Statutory Provisions
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`28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of
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`1996 (“AEDPA”), provides in relevant part as follows:
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`(d) An application for a writ of habeas corpus on behalf of a person
`in custody pursuant to the judgment of a state court shall not be
`granted with respect to any claim that was adjudicated on the merits
`in State court proceedings unless the adjudication of the claim -
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`(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
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`(2) resulted in a decision that was based on an unreasonable
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`determination of the facts in light of the evidence presented
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`in the State court proceeding.
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`Section 2254(d) constitutes a “constraint on the power of a federal habeas court to grant a
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`state prisoner’s application for a writ of habeas corpus.” (Terry) Williams v. Taylor, 529 U.S.
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`362, 412 (2000). It does not, however, “imply abandonment or abdication of judicial review,” or
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`“by definition preclude relief.” Miller El v. Cockrell, 537 U.S. 322, 340 (2003). If either prong
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`(d)(1) or (d)(2) is satisfied, the federal court may grant relief based on a de novo finding of
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`constitutional error. See Frantz v. Hazey, 533 F.3d 724, 736 (9th Cir. 2008) (en banc).
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`Case 2:19-cv-00155-WBS-EFB Document 30 Filed 12/04/19 Page 8 of 42
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`The statute applies whenever the state court has denied a federal claim on its merits,
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`whether or not the state court explained its reasons. Harrington v. Richter, 562 U.S. 86, 99-100
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`(2011). State court rejection of a federal claim will be presumed to have been on the merits
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`absent any indication or state law procedural principles to the contrary. Id. at 784-785 (citing
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`Harris v. Reed, 489 U.S. 255, 265 (1989) (presumption of a merits determination when it is
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`unclear whether a decision appearing to rest on federal grounds was decided on another basis)).
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`“The presumption may be overcome when there is reason to think some other explanation for the
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`state court's decision is more likely.” Id. at 785.
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`A.
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`“Clearly Established Federal Law”
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`The phrase “clearly established Federal law” in § 2254(d)(1) refers to the “governing
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`legal principle or principles” previously articulated by the Supreme Court. Lockyer v. Andrade,
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`538 U.S. 63, 71 72 (2003). Only Supreme Court precedent may constitute “clearly established
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`Federal law,” but courts may look to circuit law “to ascertain whether . . . the particular point in
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`issue is clearly established by Supreme Court precedent.” Marshall v. Rodgers, 569 U.S. 58, 64
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`(2013).
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`B.
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`“Contrary To” Or “Unreasonable Application Of” Clearly Established
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`Federal Law
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`Section 2254(d)(1) applies to state court adjudications based on purely legal rulings and
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`mixed questions of law and fact. Davis v. Woodford, 384 F.3d 628, 637 (9th Cir. 2003). The two
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`clauses of § 2254(d)(1) create two distinct exceptions to AEDPA’s limitation on relief. Williams,
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`529 U.S. at 404-05 (the “contrary to” and “unreasonable application” clauses of (d)(1) must be
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`given independent effect, and create two categories of cases in which habeas relief remains
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`available).
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`A state court decision is “contrary to” clearly established federal law if the decision
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`“contradicts the governing law set forth in [the Supreme Court’s] cases.” Id. at 405. This
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`includes use of the wrong legal rule or analytical framework. “The addition, deletion, or
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`alteration of a factor in a test established by the Supreme Court also constitutes a failure to apply
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`controlling Supreme Court law under the ‘contrary to’ clause of the AEDPA.” Benn v. Lambert,
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`283 F.3d 1040, 1051 n.5 (9th Cir. 2002). See, e.g., Williams, 529 U.S. at 391, 393 95 (Virginia
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`Supreme Court’s ineffective assistance of counsel analysis “contrary to” Strickland10 because it
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`added a third prong unauthorized by Strickland); Crittenden v. Ayers, 624 F.3d 943, 954 (9th Cir.
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`2010) (California Supreme Court’s Batson11 analysis “contrary to” federal law because it set a
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`higher bar for a prima facie case of discrimination than established in Batson itself); Frantz, 533
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`F.3d at 734 35 (Arizona court’s application of harmless error rule to Faretta12 violation was
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`contrary to U.S. Supreme Court holding that such error is structural). A state court also acts
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`contrary to clearly established federal law when it reaches a different result from a Supreme Court
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`case despite materially indistinguishable facts. Williams, 529 U.S. at 406, 412 13; Ramdass v.
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`Angelone, 530 U.S. 156, 165 66 (2000) (plurality op’n).
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`A state court decision “unreasonably applies” federal law “if the state court identifies the
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`correct rule from [the Supreme Court’s] cases but unreasonably applies it to the facts of the
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`particular state prisoner’s case.” Williams, 529 U.S. at 407-08. It is not enough that the state
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`court was incorrect in the view of the federal habeas court; the state court decision must be
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`objectively unreasonable. Wiggins v. Smith, 539 U.S. 510, 520 21 (2003). This does not mean,
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`however, that the § (d)(1) exception is limited to applications of federal law that “reasonable
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`jurists would all agree is unreasonable.” Williams, 529 U.S. at 409 (rejecting Fourth Circuit’s
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`overly restrictive interpretation of “unreasonable application” clause). State court decisions can
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`be objectively unreasonable when they interpret Supreme Court precedent too restrictively, when
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`they fail to give appropriate consideration and weight to the full body of available evidence, and
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`when they proceed on the basis of factual error. See, e.g., Williams, 529 U.S. at 397-98; Wiggins,
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`539 U.S. at 526 28 & 534; Rompilla v. Beard, 545 U.S. 374, 388 909 (2005); Porter v.
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`McCollum, 558 U.S. 30, 42 (2009).
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`10 Strickland v. Washington, 466 U.S. 668 (1984).
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`11 Batson v. Kentucky, 476 U.S. 79 (1986).
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`12 Faretta v. California, 422 U.S. 806 (1975).
`9
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`The “unreasonable application” clause permits habeas relief based on the application of a
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`governing principle to a set of facts different from those of the case in which the principle was
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`announced. Lockyer, 538 U.S. at 76. AEDPA does not require a nearly identical fact pattern
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`before a legal rule must be applied. Panetti v. Quarterman, 551 U.S. 930, 953 (2007). Even a
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`general standard may be applied in an unreasonable manner. Id. In such cases, AEDPA
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`deference does not apply to the federal court’s adjudication of the claim. Id. at 948.
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`Review under § 2254(d) is limited to the record that was before the state court. Cullen v.
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`Pinholster, 131 S. Ct. 1388, 1398 (2011). The question at this stage is whether the state court
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`reasonably applied clearly established federal law to the facts before it. Id. In other words, the
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`focus of the § 2254(d) inquiry is “on what a state court knew and did.” Id. at 1399.
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`Where the state court’s adjudication is set forth in a reasoned opinion, § 2254(d)(1) review
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`is confined to “the state court’s actual reasoning” and “actual analysis.” Frantz, 533 F.3d at 738
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`(emphasis in original). A different rule applies where the state court rejects claims summarily,
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`without a reasoned opinion. In Harrington, supra, the Supreme Court held that when a state court
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`denies a claim on the merits but without a reasoned opinion, the federal habeas court must
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`determine what arguments or theories may have supported the state court’s decision, and subject
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`those arguments or theories to § 2254(d) scrutiny. Harrington, 562 U.S. at 101-102.
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`C.
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`“Unreasonable Determination Of The Facts”
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`Relief is also available under AEDPA where the state court predicated its adjudication of
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`a claim on an unreasonable factual determination. Section 2254(d)(2). The statute explicitly
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`limits this inquiry to the evidence that was before the state court.
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`Even factual determinations that are generally accorded heightened deference, such as
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`credibility findings, are subject to scrutiny for objective reasonableness under § 2254(d)(2). For
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`example, in Miller El v. Dretke, 545 U.S. 231 (2005), the Supreme Court ordered habeas relief
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`where the Texas court had based its denial of a Batson claim on a factual finding that the
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`prosecutor’s asserted race neutral reasons for striking African American jurors were true.
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`Miller El, 545 U.S. at 240.
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`An unreasonable determination of facts exists where, among other circumstances, the
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`state court made its findings according to a flawed process – for example, under an incorrect
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`legal standard, or where necessary findings were not made at all, or where the state court failed to
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`consider and weigh relevant evidence that was properly presented to it. See Taylor v. Maddox,
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`366 F.3d 992, 999 1001 (9th Cir.), cert. denied, 543 U.S. 1038 (2004). Moreover, if “a state
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`court makes evidentiary findings without holding a hearing and giving petitioner an opportunity
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`to present evidence, such findings clearly result in a ‘unreasonable determination’ of the facts”
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`within the meaning of § 2254(d)(2). Id. at 1001; accord Nunes v. Mueller, 350 F.3d 1045, 1055
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`(9th Cir. 2003) (state court’s factual findings must be deemed unreasonable under section
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`2254(d)(2) because “state court . . . refused Nunes an evidentiary hearing” and findings
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`consequently “were made without . . . a hearing”), cert. denied, 543 U.S. 1038 (2004); Killian v.
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`Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (“state courts could not have made a proper
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`determination” of facts because state courts “refused Killian an evidentiary hearing on the
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`matter”), cert. denied, 537 U.S. 1179 (2003).
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`A state court factual conclusion can also be substantively unreasonable where it is not
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`fairly supported by the evidence presented in the state proceeding. See, e.g., Wiggins, 539 U.S.
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`at 528 (state court’s “clear factual error” regarding contents of social service records constitutes
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`unreasonable determination of fact); Green v. LaMarque, 532 F.3d 1028 (9th Cir. 2008) (state
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` court’s finding that the prosecutor’s strike was not racially motivated was unreasonable in light
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`of the record before that court); Bradley v. Duncan, 315 F.3d 1091, 1096 98 (9th Cir. 2002) (state
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`court unreasonably found that evidence of police entrapment was insufficient to require an
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`entrapment instruction), cert. denied, 540 U.S. 963 (2003).
`II.
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`The Relationship Of § 2254(d) To Final Merits Adjudication
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`To prevail in federal habeas proceedings, a petitioner must establish the applicability of
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`one of the § 2254(d) exceptions and also must also affirmatively establish the constitutional
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`invalidity of his custody under pre AEDPA standards. Frantz v. Hazey, 533 F.3d 724 (9th Cir.
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`2008) (en banc). There is no single prescribed order in which these two inquiries must be
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`Case 2:19-cv-00155-WBS-EFB Document 30 Filed 12/04/19 Page 12 of 42
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`conducted. Id. at 736 37. The AEDPA does not require the federal habeas court to adopt any one
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`methodology. Lockyer v. Andrade, 538 U.S. 63, 71 (2003).
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`In many cases, § 2254(d) analysis and direct merits evaluation will substantially overlap.
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`Accordingly, “[a] holding on habeas review that a state court error meets the § 2254(d) standard
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`will often simultaneously constitute a holding that the [substantive standard for habeas relief] is
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`satisfied as well, so no second inquiry will be necessary.” Frantz, 533 F.3d at 736. In such cases,
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`relief may be granted without further proceedings. See, e.g., Goldyn v. Hayes, 444 F.3d 1062,
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`1070 71 (9th Cir. 2006) (finding § 2254(d)(1) unreasonableness in the state court's conclusion
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`that the state had proved all elements of the crime, and granting petition); Lewis v. Lewis, 321
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`F.3d 824, 835 (9th Cir. 2003) (finding § 2254(d)(1) unreasonableness in the state court’s failure
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`to conduct a constitutionally sufficient inquiry into a defendant’s jury selection challenge, and
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`granting petition); Williams v. Ryan, 623 F.3d 1258 (9th Cir. 2010) (finding § 2254(d)(1)
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`unreasonableness in the state court’s refusal to consider drug addiction as a mitigating factor at
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`capital sentencing, and granting penalty phase relief).
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`
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`In other cases, a petitioner’s entitlement to relief will turn on legal or factual questions
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`beyond the scope of the § 2254(d) analysis. In such cases, the substantive claim(s) must be
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`separately evaluated under a de novo standard. Frantz, 533 F.3d at 737. If the facts are in dispute
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`or the existence of constitutional error depends on facts outside the existing record, an evidentiary
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`hearing may be necessary. Id. at 745; see also Earp, 431 F.3d 1158 (remanding for evidentiary
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`hearing after finding § 2254(d) satisfied).
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`I.
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`Juror Misconduct
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`DISCUSSION
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`After the jurors rendered their verdict, petitioner moved for a new trial. ECF No. 20-2
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`(Clerk’s Transcript Vol. 2) at 10 – 11. The motion was based on juror affidavits which indicated
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`that misconduct had occurred during deliberations. Id. at 13. Ther