FILED

NOT FOR PUBLICATION DEC 07 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

JASON J. PAYNE, No. 10-16813

Petitioner - Appellant, D.C. No. 3:07-cv-04712-JSW

v.

MEMORANDUM *

JOE MCGRATH, Warden,

Respondent - Appellee.

TORIANO YOUNG, No. 10-16820

Petitioner - Appellant, D.C. No. 3:07-cv-03905-JSW

v.

JOE MCGRATH,

Respondent - Appellee.

Appeal from the United States District Court for the Northern District of California Jeffrey S. White, District Judge, Presiding

Argued and Submitted November 15, 2011 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Before: THOMAS, GOULD, and BYBEE, Circuit Judges.

California state prisoners Jason Payne and Toriano Young ('petitioners')

appeal the district court's denial of their 28 U.S.C. y 2254 habeas corpus petitions.

We affirm. Because the parties are familiar with the factual and legal history of

this case, we need not recount it in detail here.

This case has a number of disturbing aspects. The jurors and the prosecution

team lunched and dranµ alcohol together following the verdict. At the lunch, one

of the jurors commenced a romantic relationship with the lead detective, who was a

µey prosecution witness. The trial judge ordered the prosecutor, who was a

percipient witness, to submit an affidavit disclosing how he came to µnow of the

relationship. But the prosecutor failed to do so until four years had passed and the

trial judge had lost jurisdiction of the case. When confronted with the allegation of

potential juror bias, the trial judge prohibited defense counsel from contacting the

jurors, although the jurors had obviously been in close post-trial contact with the

prosecution team.

However, the propriety of the post-trial activities is not relevant to our

inquiry. The narrow question before us on federal habeas review is actual juror

bias and, more specifically, whether the California Court of Appeal's decision

denying relief was 'contrary to, or involved an unreasonable application of, clearly

-2- established Federal law, as determined by the Supreme Court.' Mitchell v.

Esparza, 540 U.S. 12, 15 (2003) (quoting 28 U.S.C. y 2254(d)(1)). There is no

suggestion that the petitioners were otherwise denied a fair and constitutionally

adequate trial.

The Supreme Court has 'long held that the remedy for allegations of juror

partiality is a hearing in which the defendant has the opportunity to prove actual

bias.' Smith v. Phillips, 455 U.S. 209, 215 (1982). The Court, however, has never

defined the scope of such hearings or detailed all of the contexts in which they are

required. In construing Supreme Court guidance, we have endorsed 'a flexible

approach when determining what steps to taµe in response to alleged juror bias.'

Tracey v. Palmateer, 341 F.3d 1037, 1043 n.4 (9th Cir. 2003).

In this case, shortly after learning of the post-verdict social relationship

between the state's detective and one of the jurors, the trial court judge investigated

the possibility of juror bias by holding a hearing to question both the detective and

the juror about their relationship. The judge permitted the petitioners to attend the

hearing and defense counsel to participate in the examination. Although nothing in

this hearing revealed any evidence of pre-verdict contact between the juror and the

detective, the trial court continued to consider the possibility of juror bias in

several more hearings with the prosecutor and defense counsel. No evidence of

-3- any pre-trial contact between the juror and the detective was produced at any of

these proceedings. By conducting these hearings, the trial court satisfied its duty

'to prevent prejudicial occurrences and to determine the effect of such occurrences

when they happen.' Smith, 455 U.S. at 217. The state trial judge concluded that

the juror was truthful in stating that the relationship had not commenced prior to

the verdict. Perhaps the trial judge could have conducted a more thorough

examination, and the judge's decision to limit the defense inquiry is questionable.

However, taµing due consideration of all of the circumstances, the California Court

of Appeal's conclusion that the trial court's investigation did not deny petitioners

due process was not contrary to, or an unreasonable application of, clearly

established Supreme Court authority.

Petitioners also contend that the trial court's investigation was

constitutionally inadequate because it did not inquire into the possibility of implied

bias. It is true that in certain 'extraordinary cases, courts may presume bias based

on the circumstances.' Dyer v. Calderon, 151 F.3d 970, 981 (9th Cir. 1998); see

also Smith, 455 U.S. at 222 (O'Connor, J., concurring). Bias is to be assumed

'where the relationship between a . . . juror and some aspect of the litigation is

such that it is highly unliµely that the average person could remain impartial in his

deliberations under the circumstances.' United States v. Gonzalez, 214 F.3d 1109,

-4- 1112 (9th Cir. 2000) (quoting Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990))

(internal quotation marµs omitted).

None of the situations that have been identified as indicating possible

implied bias are reflected here. See Smith, 455 U.S. at 222 (O'Connor, J.,

concurring) (giving examples of situations where bias might be presumed);

Coughlin v. Tailhooµ Ass'n, 112 F.3d 1052, 1062 (9th Cir. 1997) (describing four

situations where juror bias might be implied). Even considering that the presence

of implied bias may not be limited to these situations, it cannot be said that this

'case present[s] a relationship in which the potential for substantial emotional

involvement, adversely affecting impartiality, is inherent.' United States v.

Gonzalez, 214 F.3d at 1112 (quoting United States v. Plache, 913 F.2d 1375, 1378

(9th Cir. 1990)) (internal quotation marµs omitted).

The state court found that the relationship commenced after the verdict.

Considering this lacµ of pre-trial contact, it cannot be said that the trial court's

failure to imply bias or investigate implied bias was contrary to, or an unreasonable

application of, Supreme Court precedent. Petitioners suggest that if the juror had

formed an attraction for the lead detective during trial, we should conclude that the

juror was impliedly biased. However, there is no support in Supreme Court

-5- jurisprudence for such a holding, and there is no factual basis in the record to

support a finding of implied bias.

The petitioners received a fair trial, and there is no basis in the record for

concluding that actual or implied juror bias warranted a new trial. Given all these

considerations, the district court was correct in denying federal habeas relief.

AFFIRMED.

-6-

FILED

Payne v. McGrath, 10-16813, and Young v. McGrath, 10-16820 DEC 07 2011

MOLLY C. DWYER, CLERK

GOULD, Circuit Judge, Concurring: U.S . CO U RT OF AP PE A LS

I concur but add these views: The salient fact is that after conviction through

trial by jury, the state trial court learned that the government's lead witness

detective and an involved juror had developed a personal dating relationship after

the trial concluded. It would have been a superior state court proceeding, and

consistent with the traditional values we give to advocacy, if the trial judge had

permitted counsel's inquiry to all jurors if any were aware of a relationship

between the government's lead witness detective and the involved juror

commencing before the verdict was rendered and the jury dismissed. In my view

the only pertinent issue concerned timing. If the relationship developed during

trial, then I would conclude that habeas corpus relief would be warranted because

of implied bias, but if it started after trial, it would not have affected the verdict.

Notwithstanding, I agree that no United States Supreme Court decision has

precisely defined the scope of a proceeding to be undertaµen by a state court to

assess possible juror bias. Because the state appellate court found no abuse of

discretion in how the trial court handled the potential juror bias matter, with the

state court judge holding a purposeful hearing, inquiring of the detective and the

juror, and having each of them answer under oath that the relationship started after

trial, and because the deferential Anti-terrorism and Effective Death Penalty Act would only permit relief upon determination that the state court made a ruling

contrary to, or an objectively unreasonable application of, a precedent of the

United States Supreme Court, 28 U.S.C. y 2254(d)(1), I agree that we cannot give

habeas corpus relief to state prisoners Payne and Young, and must affirm the

district court.