Gregorio Jimenez v. E.R. Myers, Warden Attorney General of California

12 F.3d 1474 Gregorio JIMENEZ, Petitioner-Appellant, v. E.R. MYERS, Warden; Attorney General of California, Respondents-Appellees. No. 91-56476. United States Court of Appeals, Ninth Circuit. Argued and Submitted March 2, 1993. Decided Dec. 8, 1993. Howard C. Cohen, Appellate Defenders, Inc., San Diego, CA, for petitioner-appellant. Peggy S. Ruffra, Deputy Atty. Gen., Los Angeles, CA, for respondents-appellees. Appeal from the United States District Court for the Central District of California. Before: BROWNING, HUG, and KOZINSKI, Circuit Judges. PER CURIAM: 1 Gregorio Jimenez appeals the district court's denial of his petition for a writ of habeas corpus based on the claim that the state trial judge coerced the jury into rendering a guilty verdict in violation of Jimenez's Fourteenth Amendment right to due process. I. 2 Jimenez fired two shots through the front door of his cousin's house after she ran inside following an argument. He was convicted of attempted murder. At trial he claimed he intended only to frighten his cousin and had not fired until he believed she had moved away from the door. In an effort to gain an acquittal, Jimenez and his counsel made a "tactical decision…

dissenting.

As federal judges, we’re subject to a peculiar myopia: We tend to see the federal way of doing things as the best way, often as the be-all and end-all of due process. This preference for the familiar is understandable enough, but it carries with it special dangers when we review state convictions for constitutional error. There are many ways of giving a defendant a fair trial. We sap our federal system of vitality and creativity when we strike down state procedures because they differ from our own.

This is a case in point. Not everyone agrees on how to deal with a jury that indicates it’s deadlocked. The jury shouldn’t keep deliberating if unanimity is beyond reach, but it ought not to be discharged if there’s a reasonable possibility of reaching agreement. To resolve this tension, most federal courts, as well as some state courts, give an Allen charge — a fairly coercive instruction that tells jurors to go back and try again. The Allen charge has been subject to much criticism, however, and; many courts have either modified or rejected it, the California Supreme Court among.them. 1 People v. Gainer, 19 Cal.3d 835 , 139 Cal.Rptr. 861 , 566 P.2d 997 (1977), held that…

Gregorio Jimenez appeals the district court’s denial of his petition for a writ of habeas corpus based on the claim that the state trial judge coerced the jury into rendering a guilty verdict in violation of Jimenez’s Fourteenth Amendment right to due process.

I.

Jimenez fired two shots through the front door of his cousin’s house after she ran inside following an argument. He was convicted of attempted murder. At trial he claimed he intended only to frighten his cousin and had not fired until he believed she had moved away from the door. In an effort to gain an acquittal, Jimenez and his counsel made a “tactical decision ... not to seek any lesser included ■ offenses or submit instructions thereon for the jury’s consideration.” In addition to describing the elements of attempted murder and giving other standard charges, the court instructed the jury that each juror should decide the case after discussion, but without succumbing to the pressure of the majority.

After four and three quarter hours of deliberations, the jury sent the judge a note stating, “We are unable to reach a verdict and feel strongly that we would not be able to reach a verdict.” Defense counsel took the…