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

Dissent by Judge KOZINSKI

ORDER

The opinion filed December 8, 1993, slip op. at 13767, 12 F.3d 1474 , is amended by substituting the attached part II for that originally filed.

OPINION

Gregorio Jiminez 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 Jiminez’s Fourteenth Amendment right to due process.

I.

Jiminez 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, Jiminez 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…

The majority has made a bad situation worse. In its earlier opinion, it merely held that “our Allen charge cases are relevant.” 12 F.3d 1474, 1477 (9th Cir.1993). Today, it invents a whole new doctrine — the “de facto Allen charge.” Maj. op. at 980. According to the majority, “the court’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 towards unanimity.” Id.

With all due respect to my colleagues, this is sheer phantasy. What happened here is nothing like giving an Allen charge, where the trial judge explicitly exhorts jurors to try to achieve unanimity. The idea that we can piece together a de facto Allen charge from a trial judge’s questions and comments, none of which exhorts the jury to do anything at all, is far more novel and far more dangerous than what the majority said the last time around. Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), is clearly implicated.

For these reasons, and those stated in my earlier dissent, see 12…

40 F.3d 976 Gregorio JIMINEZ, 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. As Amended Oct. 28, 1994. Howard C. Cohen, Appellate Defenders, Inc., San Diego, CA, for appellant. Peggy S. Ruffra, Deputy Atty. Gen., State of Cal., Los Angeles, CA, for appellees. Appeal from the United States District Court for the Central District of California. Before: BROWNING, HUG, and KOZINSKI, Circuit Judges. PER CURIAM; Dissent by Judge KOZINSKI ORDER 1 The opinion filed December 8, 1993, slip op. at 13767, 12 F.3d 1474 , is amended by substituting the attached part II for that originally filed. OPINION PER CURIAM: 2 Gregorio Jiminez 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 Jiminez's Fourteenth Amendment right to due process. I. 3 Jiminez 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.…