FILED

NOT FOR PUBLICATION

AUG 01 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NENG SAYPAO PHA, No. 15-16028

Plaintiff-Appellant, D.C. No. 2:13-cv-01133-MCE-

GGH

v.

GARY SWARTHOUT, WARDEN,

MEMORANDUM*

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Morrison England, Jr., Chief District Judge, Presiding

Argued and Submitted July 6, 2016 San Francisco, California

Before: BERZON, and N.R. SMITH, Circuit Judges, and ZOUHARY,** District Judge.

The district court did not err in denying Neng Pha habeas relief. The primary

issue on appeal is whether the district court erred in denying Pha’s claim that the state

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

** The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio, sitting by designation. court unreasonably denied him juror information to explore a possible claim of juror

bias, thereby denying him a meaningful evidentiary hearing regarding such bias. We

affirm.

1. In a post-trial email from a juror to the prosecutor, the juror

complimented him on his trial presentation. The prosecutor shared the email with the

court and defense counsel. Subsequently, defense petitioned for disclosure of the

jurors’ addresses and telephone numbers for discovery purposes in anticipation of an

evidentiary hearing for juror misconduct and/or a motion for a new trial. Pursuant to

Cal. Code Civ. Pro. § 237, the state court held a hearing on the petition and, in its

discretion, denied the petition. The court determined that the petitioner had not made

a prima facie good cause showing of juror misconduct. The trial court specifically

found no proof

that the juror ignored evidence, that she failed to deliberate, that she had a bias that was undisclosed, or that she had a bias either for the victim or against the defendant that rose to the level so that she could not fairly and objectively consider the evidence and participate in deliberations with the other jurors.

The California Court of Appeal affirmed, finding that the state court reasonably

concluded that the email, while “unusual,” did not suggest the juror improperly shared

her feelings with other jurors or harbored a bias toward Pha.

2 Pha’s petition fails for two reasons. First and foremost, Pha was not entitled

under clearly established federal law either to juror contact information or to an

evidentiary hearing on his claim of juror misconduct. Pha identifies no Supreme

Court decision addressing a defendant’s entitlement to written discovery upon

suggestion of juror misconduct. Instead, he appears to argue, as he did before the state

courts, that a Remmer-type hearing is useless without pre-hearing discovery. Thus, to

the extent he argues the state court wrongly denied him jurors’ addresses and phone

numbers, that decision was not contrary to or an unreasonable application of clearly

established federal law. See White v. Woodall, 134 S. Ct. 1697, 1706 (2014) (“‘[I]f

a habeas court must extend a rationale before it can apply to the facts at hand,’ then

by definition the rationale was not ‘clearly established at the time of the state-court

decision.’” (quoting Yarborough v. Alvarado, 541 U.S. 652, 666 (2004))).

Further, this Court has repeatedly held that “Remmer and Smith do not stand for

the proposition that any time evidence of juror bias comes to light, due process

requires the trial court to question the jurors alleged to have bias.” Tracey v.

Palmateer, 341 F.3d 1037, 1044 (9th Cir. 2003). Contrary to Pha’s suggestion,

“[n]either case mandates a hearing whenever evidence of juror bias is raised.” Sims

v. Rowland, 414 F.3d 1148, 1153 (9th Cir. 2005). “Rather, in determining whether

a hearing must be held, the court must consider the content of the allegations, the

3 seriousness of the alleged misconduct or bias, and the credibility of the source.”

Tracey, 341 F.3d at 1044 (internal quotation marks omitted). That is precisely what

the state trial court did. The court held a hearing on Pha’s petition and decided his

claim deserved no encouragement to go further; clearly established federal law

requires nothing more. See Sims, 341 F.3d at 1045.

Second, the state courts reasonably concluded that the email did not suggest the

juror improperly shared her feelings with the other jurors or harbored a bias towards

Pha. The Supreme Court recognizes juror impartiality as an issue “encompassing

more than ‘basic, primary, or historical facts,’” whose “resolution depends heavily on

the trial court’s appraisal of witness credibility and demeanor.” Thompson v. Keohane,

516 U.S. 99, 111 (1995). Accordingly, the “state court’s determination that a claim

lacks merit precludes federal habeas relief so long as ‘fairminded jurists could

disagree’ on the correctness of the state court’s decision.” Harrington v. Ritcher, 562

U.S. 86, 101 (2011).

2. The evidence Pha seeks to adduce is barred in any event by Federal

Evidence Rule 606(b). A juror’s personal history does not fall within any of Rule

606(b)’s exceptions because it derives not from “a source ‘external’ to the jury,” but

from “‘internal’ matters includ[ing] the general body of experiences that jurors are

understood to bring with them into the jury room.” Warger v. Shauers, 135 S. Ct.

4 521, 529 (2014). Thus, even were Pha granted an evidentiary hearing, he would be

barred from exploring whether the juror shared her feelings in the deliberation room

and what effect any disclosure might have had on the jury.

AFFIRMED.

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FILED

Pha v. Swarthout, No. 15-16028

AUG 01 2016

Berzon, Circuit Judge, concurring: MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

I concur in Paragraph 2 of the memorandum disposition and so in the judgment.

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