Gesse

MEMORANDUM *

Mark Gesse appeals the district court’s denial of his 28 U.S.C. § 2254 habeas corpus petition. We AFFIRM.

A jury does not reach a valid verdict until deliberations have ended, the decision is announced in open court, and no juror registers his or her dissent. United States v. Nelson, 692 F.2d 83, 84-85 (9th Cir. 1982). At no time did the jury announce a not guilty verdict on the second degree murder charge in open court.

Having been informed of the failure of jurors to deliberate in good faith, the court appropriately re-instructed the jury on their deliberation duties, clearly stating its reason for giving the further instructions. No evidence in the record suggests an effort by the court to exert influence upon the jury to reach a verdict. A trial judge is fully within his or her bounds to admonish jurors to consider the views of their fellow jurors, as long as the judge also clearly stated that the final decision each juror reaches must represent his or her own view. See Allen v. United States, 164 U.S. 492, 501-502 , 17 S.Ct. 154 , 41 L.Ed. 528 (1896).

Inability to agree on a final verdict is a “prototypical example” of judicial declaration of mistrial. See…

dissenting:

In 1991, Gesse and Tauer went out on a boat and got into a fight. Only Gesse returned. A few days later, Tauer’s body washed ashore. The autopsy established that the cause of death was drowning; it revealed no other injuries to Tauer (no signs of a struggle or foul play) and also that Tauer had a blood alcohol level of .16. *286 Over seven years later, Gesse was charged with first-degree murder. After an acquittal on first-degree murder and a hung-jury on lesser degrees of homicide, Gesse was retried and ultimately convicted of second-degree murder.

The only living witness to what happened on the boat was Gesse. How, then, did the state prove not only that Gesse killed, Tauer but that he did so with “implied malice ” as opposed to, say, by accident or on a sudden quarrel or provocation? The state admits that it doesn’t really know how Tauer wound up in the water. The state speculates that he either fell in or was pushed, but the indisputable fact is that the prosecution’s theory is nothing more than a theory. Because Tauer had an injured shoulder, the state conjectures that Tauer would not have jumped into the water and tried to swim ashore. But in making its…