Daniel Benjamin v. Kathleen Prosper

MEMORANDUM *

Daniel Benjamin appeals the denial of his 28 U.S.C. § 2254 habeas corpus petition challenging his state court convictions for petty theft with a prior conviction and possession of ephedrine or pseudoephed-rine with intent to manufacture methamphetamine. We affirm.

*633 Benjamin asserts that he was denied his right to an impartial jury and that his trial counsel was ineffective for his failure to exercise a peremptory challenge to exclude an allegedly biased juror, “No. 8025.” During voir dire, the following colloquy took place between the prosecutor and the juror:

In chambers, the attorneys challenged No. 8025 for cause. The trial court rejected the challenge, stating an initial conclusion that No. 8025 was answering the questions in a specific manner in hopes of being excused from the panel. Neither attorney exercised a peremptory challenge, and No. 8025 was placed on the jury.

1. Right to an Impartial Jury.

A state trial court’s finding of impartiality is “presumptively correct under 28 U.S.C. § 2254 [ (e)(1) ].” Smith v. Phillips, 455 U.S. 209, 218 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982). Here, the trial judge, after observing all juror comments and behaviors,…

dissenting:

The Supreme Court has instructed that “the remedy for allegations of juror partiality is a hearing in which a defendant has the opportunity to prove actual bias.” Smith v. Phillips, 455 U.S. 209, 215 , 102 S.Ct. 940 , 71 L.Ed.2d 78 (1982). In this case, a juror professed his actual bias. He told the trial court that he would be unable to return a not guilty verdict even if the state failed to prove its case. Both the government and the defense challenged the juror for cause. However, the trial court did not hold a hearing. Rather, it simply speculated that the juror was just trying to avoid jury duty.

There are only two possibilities: the juror was actually biased or the juror was lying to the trial court. Even under AED-PA’s deferential review, I conclude that the trial court erred by not holding an evidentiary hearing on the juror’s self-expressed actual bias.

The failure of Benjamin’s counsel to make a peremptory challenge to the juror also warrants federal habeas relief. To be sure, defense counsel is permitted wide latitude in making strategic choices. However, “[ajlthough defense counsel is empowered to make such strategic decisions, Strickland demands that…

FILED

NOT FOR PUBLICATION JUL 09 2012

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

DANIEL PATRICK BENJAMIN, No. 11-15048

Petitioner - Appellant, D.C. No. 2:03-cv-01166-FCD-

KJN

v.

KATHLEEN PROSPER; T. RANSDALL; MEMORANDUM *

ATTORNEY GENERAL OF THE STATE

OF CALIFORNIA,

Respondents - Appellees.

Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Senior District Judge, Presiding

Argued and Submitted February 13, 2012 San Francisco, California

Before: THOMAS, FISHER and IKUTA, Circuit Judges.

Daniel Benjamin appeals the denial of his 28 U.S.C. § 2254 habeas corpus

petition challenging his state court convictions for petty theft with a prior

conviction and possession of ephedrine or pseudoephedrine with intent to

manufacture methamphetamine. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Benjamin asserts that he was denied his right to an impartial jury and that his

trial…