United States v. 2020-06-22 | 18-16761 | RICKEY SCOTT V. ERIC ARNOLD | precedential | opinion |

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

RICKEY LEON SCOTT,
Petitioner-Appellee,

v.

ERIC ARNOLD, Warden, of California
State Prison, Solano,
Respondent-Appellant.
No. 18-16761

D.C. No.
4:16-cv-06584-
JST

OPINION

Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding

Argued and Submitted October 25, 2019
San Francisco, California

Filed June 22, 2020

Before: Michael J. Melloy,
*
Jay S. Bybee,
and N. Randy Smith, Circuit Judges.

Opinion by Judge Melloy

*
The Honorable Michael J. Melloy, United States Circuit Judge for
the U.S. Court of Appeals for the Eighth Circuit, sitting by designation.

2 SCOTT V. ARNOLD

SUMMARY
**

Habeas Corpus

The panel reversed the district court’s judgment granting
Rickey Leon Scott’s habeas corpus petition in a case in
which Scott, who was convicted of first-degree murder,
moved for a new trial based on his discovery that a juror had
made a false representation during voir dire.

The trial court denied the motion, and the California
Court of Appeal affirmed, holding that McDonough Power
Equipment, Inc. v. Greenwood, 464 U.S. 548 (1984), which
permits a new trial where a juror’s lies during voir dire hide
a fact that would have permitted the juror to be stricken for
cause, accommodates a prejudice analysis. The district court
held that McDonough could not accommodate a prejudice
analysis.

Applying AEDPA review, the panel held that it was not
unreasonable for the state court to conclude that McDonough
accommodates a prejudice analysis, as McDonough did not
explain if, or demonstrate through application whether, it
was establishing a simple binary test or a test that
accommodates a prejudice analysis. The panel observed that
fairminded disagreement exists as to the application of
McDonough, and therefore concluded that the state court did
not reach a decision contrary to clearly established Supreme
Court precedent.

**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

SCOTT V. ARNOLD 3

COUNSEL

Michele J. Swanson (argued), Deputy Attorney General;
Peggy S. Ruffra, Supervising Deputy Attorney General;
Jeffrey M. Laurence, Senior Assistant Attorney General;
Xavier Becerra, Attorney General; Office of the Attorney
General, San Francisco, California; for Respondent-
Appellant.

Steven A. Hirsch (argued), Steven P. Ragland, and Neha
Mehta, Keker Van Nest & Peters LLP, San Francisco,
California, for Petitioner-Appellee.

OPINION
MELLOY, Circuit Judge:
After Petitioner-Appellee Rickey Leon Scott was
convicted of first-degree murder, he moved for a new trial
based on his discovery that a juror had made a false
representation during voir dire. The state trial court held an
evidentiary hearing and denied his motion for a new trial,
finding the juror had made a false representation but there
had been no prejudice. The trial court also found the
Supreme Court’s opinion in McDonough Power Equipment,
Inc. v. Greenwood, 464 U.S. 548 (1984), did not require the
trial court to grant Scott a new trial.
The California Court of Appeal affirmed. People v.
Scott, No. A139921, 2015 WL 4505784 (Cal. Ct. App. July
24, 2015). The Court of Appeal noted that McDonough
permits a new trial where a juror’s lies during voir dire hide
a fact that would have permitted the juror to be stricken for
cause. See id. at *9. However, focusing on McDonough’s

4 SCOTT V. ARNOLD

rationale that “only those reasons that affect a juror’s
impartiality can truly be said to affect the fairness of the
trial,” see 464 U.S. at 556, the Court of Appeal interpreted
McDonough as accommodating a prejudice analysis and as
not mandating a new trial where the presumption of
prejudice is rebutted.
In the present case, the juror’s false representation hid
the factual basis of a possible for-cause strike under a state
statute that creates a rebuttable presumption of implied bias.
See Cal. Civ. Proc. Code § 229(b) (rebuttable presumption
arises if a prospective juror was represented by a party’s
attorney less than one year prior to the filing of the complaint
in the case being tried). The prospective juror previously
had been represented in a misdemeanor case by an attorney
from the same public defender’s office as Scott’s attorney,
giving rise to the statutory presumption of bias. The Court
of Appeal found the presumption rebutted primarily because
the prospective juror had not recognized an associational
connection between his own attorney and Scott’s public
defender. Scott, 2015 WL 4505784, at *8. The Court of
Appeal also emphasized that, even if the prospective juror
had made a factual connection between the two attorneys, it
was not clear how the fact of prior representation might have
influenced the prospective juror’s attitude towards Scott’s
case. See id; see also id. at *11 (“The bias that is implied
statutorily under state law by virtue of a recent attorney-
client relationship is not comparable to the extreme and
extraordinary situations in which bias is presumed under
federal law and may not be rebutted.”).
The California Supreme Court denied further review,
and Scott filed for federal habeas relief pursuant to 28 U.S.C.
§ 2254. The district court granted relief, holding the state
court misapplied McDonough. The district court held that

SCOTT V. ARNOLD 5

McDonough could not accommodate a prejudice analysis
and, instead, created a simple two-part test asking only if:
(1) the prospective juror had lied; and (2) the lie concealed
the basis of a for-cause challenge.
Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”), habeas relief is permitted only if the
state court’s ruling “resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1). “This
means that a state court’s ruling must be ‘so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.’” Shoop v. Hill, 139 S. Ct. 504,
506 (2019) (quoting Harrington v. Richter, 562 U.S. 86, 103
(2011)). “[C]learly established Federal law, as determined
by the Supreme Court of the United States” means “the
holdings, as opposed to the dicta,” of Supreme Court
decisions “as of the time of the relevant state-court
decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000).
Therefore, a “federal court may not overrule a state court for
simply holding a view different from its own, when
[Supreme Court] precedent . . . is, at best, ambiguous.”
Mitchell v. Esparza, 540 U.S. 12, 17 (2003).
It was not unreasonable for the state court to conclude
that McDonough accommodates a prejudice analysis.
McDonough leaves several outstanding questions
unanswered, and the current case falls into an area where
clarity is lacking. It remains unclear whether and to what
extent the United States Supreme Court recognizes
distinctions between actual prejudice, implied prejudice, and
“McDonough prejudice,” and what showings for relief are
required in each scenario. Cf. Hedlund v. Ryan, 854 F.3d

6 SCOTT V. ARNOLD

557, 575 (9th Cir. 2017) (“There is no clearly established
federal law regarding the issue of implied bias.”).
McDonough itself rejected a challenge based on a lost
opportunity to exercise a peremptory strike and announced a
new test regarding for-cause challenges without applying
that test. 464 U.S. at 555–56. McDonough, therefore, did
not explain if, or demonstrate through application whether,
it was establishing a simple binary test or a test that
accommodates a prejudice analysis.
Importantly, since McDonough, our court and other
circuits have highlighted this remaining uncertainty and
described McDonough as accommodating a prejudice
analysis. See Faria v. Harleysville Worcester Ins. Co.,
852 F.3d 87, 96 (1st Cir. 2017) (“The binary test set forth in
McDonough is not a be-all -end-all test to be viewed without
context. Rather, the fundamental purpose of the test is to
answer the crucial, overarching trial inquiry: was the juror
biased and, if so, did that bias affect the fairness of the
trial?”); Conaway v. Polk, 453 F.3d 567, 582–89 (4th Cir.
2006) (“Even where, as here, the two parts of the
McDonough test have been satisfied, a juror’s bias is only
established under McDonough if the juror’s ‘motives for
concealing information’ or the ‘reasons that affect [the]
juror’s impartiality can truly be said to affect the fairness of
[the] trial.’” (alterations in original) (quoting McDonough,
464 U.S. at 556)); Pope v. Man-Data, Inc., 209 F.3d 1161,
1164 (9th Cir. 2000) (“Under McDonough, a new trial is
warranted only if the district court finds that the juror’s voir
dire responses were dishonest, rather than merely mistaken,
and that her reasons for making the dishonest response call
her impartiality into question.”); Dyer v. Calderon, 151 F.3d
970, 973 (9th Cir. 1998) (en banc) (describing McDonough
as instructing courts to “determine whether . . . answers were
dishonest and, if so, whether this undermined the

SCOTT V. ARNOLD 7

impartiality of [the] jury”). Simply put, “fairminded
disagreement” currently exists as to the application of
McDonough, and the state court did not reach a decision
“contrary to” clearly established Supreme Court precedent.
Harrington, 562 U.S. at 100, 103.
To the extent Scott argues dicta in a more recent
Supreme Court case eliminates uncertainty surrounding
McDonough, see Warger v. Shauers, 135 S. Ct. 521, 525
(2014) (holding that juror-deliberation evidence could not be
used to attack a verdict but stating in dicta that, “[i]f a juror
was dishonest during voir dire and an honest response would
have provided a valid basis to challenge that juror for cause,
the verdict must be invalidated”), we emphasize that clearly
established Supreme Court precedent for purposes of
28 U.S.C. § 2254 cannot be found in dicta, Carey v.
Musladin, 549 U.S. 70, 74 (2006) (“[C]learly established
Federal law in § 2254(d)(1) refers to the holdings, as
opposed to the dicta, of this Court’s decisions as of the time
of the relevant state-court decision.” (citation omitted)).
Although we conclude Scott is not entitled to habeas
relief under AEDPA’s strict standards, we write further to
emphasize two points. First, nothing in today’s opinion
should be construed as suggesting that we have found clarity
in our circuit’s treatment of McDonough. And second, even
if such clarity existed at the circuit level, clearly established
federal law for habeas purposes cannot be found in circuit
courts’ expansion or interpretation of Supreme Court
precedent. Lopez v. Smith, 574 U.S. 1, 7 (2014) (per curiam).
Rather, clarity must exist in the Supreme Court’s own
rulings. See id. (“[C]ircuit precedent cannot ‘refine or
sharpen a general principle of Supreme Court jurisprudence
into a specific legal rule that this Court has not announced.’”
(quoting Marshall v. Rodgers, 569 U.S. 58, 64 (2013) (per

8 SCOTT V. ARNOLD

curiam))). As such, we may ask whether our own court has
already determined that an issue was clearly established by
the Supreme Court, but we “may not canvass circuit
decisions to determine whether a particular rule of law is so
widely accepted . . . that it would, if presented to [the] Court,
be accepted as correct.” Marshall, 569 U.S. at 64.
Looking at our own treatment of McDonough, we cite
Pope, 209 F.3d at 1164, and Dyer, 151 F.3d at 973, above,
for the emphasis they seemingly place on McDonough’s
contested passage regarding dishonesty that demonstrates
impartiality and the arguable need for a showing of
prejudice. Earlier, in Coughlin v. Tailhook Association, we
applied McDonough to determine whether a juror’s
dishonesty during voir dire required a new trial. 112 F.3d
1052, 1059–62 (9th Cir. 1997). Although we did not
reference an impartiality or prejudice requirement under
McDonough, we arguably applied a prejudice analysis in
reaching our ultimate holding. Id. at 1062 (“Thus, the
district judge did not clearly err when he concluded that [the
juror] did not fail to answer honestly material questions on
voir dire. We conclude that [the juror’s] dishonesty, if any,
was limited to collateral matters that had no impact on his
ability to serve as a juror in this proceeding.”).
More recently, in Elmore v. Sinclair, we initially
described McDonough as requiring two showings: (1) “[the
juror] failed to honestly answer a material question on voir
dire” and (2) “a correct response would have provided a
basis for a challenge for cause.” 799 F.3d 1238, 1253 (9th
Cir. 2015). Immediately after identifying these two
showings, however, we described a prejudice analysis of
sorts, indicating that the appropriate remedy following such
a showing would be a hearing on juror bias. Id. (“If [the
habeas petitioner] is able to show juror bias and lack of a fair

SCOTT V. ARNOLD 9

trial, then the appropriate remedy is a hearing on juror bias.”
(quoting Smith v. Phillips, 455 U.S. 209, 215 (1982))). In
any event, we denied habeas relief on a McDonough claim
in Elmore because we concluded a state supreme court had
reasonably interpreted the juror’s responses as not dishonest.
Id. (“This suggests that he believed his responses on the
questionnaire to be accurate. Accordingly, we conclude that
the Washington Supreme Court was not unreasonable in
dismissing [the habeas petitioner’s] claims alleging juror
bias.”).
These cases appear to stand in contrast with our
discussions in Fields v. Brown, 503 F.3d 755, 766–72 (9th
Cir. 2007) (en banc) and United States v. Olsen, 704 F.3d
1172, 1189, 1195–96 (9th Cir. 2013), where we described
actual bias, implied bias and McDonough bias as three
separate concepts without describing a prejudice showing
under McDonough. In Fields, we denied habeas relief under
a pre-AEDPA analysis, and in Olsen we rejected arguments
in a direct criminal appeal. In each case, our rejection of the
McDonough claim turned on the absence of a showing of
dishonesty on the part of a juror. See Fields, 503 F.3d at 767;
Olsen, 704 F.3d at 1196. Because we found no dishonesty,
neither case required us to make a determination as to
whether McDonough accommodated (or required) a
prejudice analysis.
Then, in United States v. Brugnara, we cited Olsen, and
stated, “A defendant must make two showings to obtain a
new trial based on McDonough bias: first, that the juror in
question ‘failed to answer honestly a material question on
voir dire,’ and second, ‘that a correct response would have
provided a valid basis for a challenge for cause.’” 856 F.3d
1198, 1211 (9th Cir. 2017) (quoting McDonough, 464 U.S.
at 556). In Brugnara, however, we referenced

10 SCOTT V. ARNOLD

McDonough’s contested passage, noting immediately after
describing the two-part test that, “[o]nly concealment for
‘reasons that affect a juror’s impartiality can truly be said to
affect the fairness of a trial.’” Id. at 1211–12 (quoting
McDonough, 464 U.S. at 556). Ultimately, we denied relief
in Brugnara because, although we assumed a juror had been
dishonest, there had been no showing that the dishonesty
concealed a valid for-cause challenge. Id. at 1212.
“Because the Supreme Court has not given explicit
direction” as to whether McDonough requires a criminal
defendant to show prejudice to obtain a new trial, “and
because the state court’s interpretation is consistent with
many other courts’ interpretations, we cannot hold that the
state court’s interpretation was contrary to, or involved an
unreasonable application of, Supreme Court precedent.”
Kessee v. Mendoza-Powers, 574 F.3d 675, 679 (9th Cir.
2009). Petitioner is therefore not entitled to habeas relief.
We REVERSE the judgment of the district court.