Tong Xiong v. Tom Felker

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TONG XIONG, 

Petitioner-Appellant, No. 09-16830 v. D.C. No. TOM FELKER, Warden; ATTORNEY  2:07-cv-02689-

GENERAL FOR THE STATE OF JAM-CHS

CALIFORNIA, OPINION

Respondents-Appellees.  Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding

Submitted March 12, 2012* San Francisco, California

Before: John T. Noonan, M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr., Circuit Judge; Dissent by Judge Noonan

*The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

6251 6254 XIONG v. FELKER

COUNSEL

Stephanie M. Adraktas, Berkeley, California, for the petitioner-appellant.

Kamala D. Harris, Michael P. Farrell, Tami M. Krenzin, Ken- neth N. Sokoler, California Department of Justice, Sacra- mento, California, for the respondents-appellees.

OPINION

M.…

Opinion by Judge MILAN D. SMITH, JR., Circuit Judge; Dissent by Judge NOONAN.

OPINION

This case presents three certified issues which we review under the Anti-terrorism and Effective Death Penalty Act (AED-PA), 28 U.S.C. § 2254 (d): (1) whether Petitioner-Appellant Tong Xiong’s (Xiong) federal due process rights were violated when the trial court construed California law to allow jurors to refuse to discuss their deliberations and alleged misconduct after trial; (2) whether jury misconduct involving unsolicited observations of some jurors deprived Xiong of his right to an impartial jury; and (3) whether Xiong received ineffective assistance of counsel due to counsel’s elicitation of unfavorable expert testimony on cross-examination.

Following an initial mistrial, Xiong was convicted of second degree murder with aggravating enhancements. Xiong received a sentence of 40 years to life, with a firearm enhancement. Xiong appealed his conviction to the California Court of Appeal on multiple grounds, including insufficient evidence, ineffective assistance of counsel, and jury misconduct. The Court of Appeal vacated a single sentence on the firearm enhancement, but affirmed on all…

dissenting:

Reversing a conviction of murder that had been affirmed by the Supreme Court of Louisiana, Justice Stewart writing for eight of the nine justices, stated:

Turner v. Louisiana, 379 U.S. 466, 471 , 85 S.Ct. 546 , 13 L.Ed.2d 424 (1965).

Justice Stewart turned to an earlier case involving jury misconduct and stated: “What the Court said in that case is controlling here[.]” Id. Justice Stewart went on to repeat the earlier case’s statement that “[a juror’s] verdict must be based upon the evidence developed at the trial.” Id. at 472 , 85 S.Ct. 546 (quoting Irvin v. Dowd, 366 U.S. 717, 722 , 81 S.Ct. 1639 , 6 L.Ed.2d 751 (1961)).

Justice Stewart continued:

Turner, 379 U.S. at 472-73 , 85 S.Ct. 546 .

Contamination of the jury by a particular source or to a particular degree is not the focus of the Supreme Court. Justice Stewart states the evidence before the jury must come from the witness stand in a public courtroom. No room is left for a dribble of relevant information snatched from the corridors of the court by undisciplined jurors.

At issue in our case was the credibility of Fue Xiong, the younger brother of the defendant. Fue had given a videotaped statement to the…