United States v. 2005-10-17 | 04-15560 | MERCED VMCGRATH | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 JUAN A. MERCED,
Petitioner-Appellant, No. 04-15560
v. D.C. No.
 CV-03-01904-CRBJOSEPH L. MCGRATH, Warden,
Pelican Bay Prison, OPINION
Respondent-Appellee. 
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Argued and Submitted
February 14, 2005—San Francisco, California
Filed October 18, 2005
Before: Dorothy W. Nelson, William A. Fletcher, and
Raymond C. Fisher, Circuit Judges.
Opinion by Judge D.W. Nelson
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COUNSEL
Philip M. Brooks, Berkeley, California, for the petitioner-
appellant.
Bill Lockyer (on the briefs), Attorney General of the State of
California, Gerald A. Engler (on the briefs), Senior Assistant
Attorney General for the State of California, Morris Beatus
(on the briefs), Deputy Attorney General for the State of Cali-
fornia, and Peggy S. Ruffra (argued), Supervising Deputy
Attorney General for the State of California, San Francisco,
California, for the respondent-appellee.
OPINION
D.W. NELSON, Circuit Judge:
Juan Merced, a California state prisoner, appeals the district
court’s denial of his petition for habeas corpus. In his petition,
Merced makes several assignments of error, only one of
which we discuss here: whether the trial court violated Mer-
ced’s constitutional rights when it excused a prospective juror
based on his belief in exercising the power of jury nullifica-
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tion in appropriate circumstances. We affirm the district
court’s denial of the habeas petition with respect to this
assignment of error.1
I.
Merced’s first trial in February and March 1999 ended with
a hung jury. Merced was retried in June 1999 and convicted
of attempted premeditated murder of a peace officer involving
the personal use of a firearm, under Cal. Pen. Code §§ 187,
664, 12022.5, and of being a convicted felon in possession of
a firearm, under Cal. Pen. Code § 12021. After finding that
the defendant had eight prior felony convictions, the trial
court sentenced Merced to state prison for a total term of
sixty-five years to life.
The California Court of Appeal, in an opinion published
only with respect to the claim of error relating to the removal
of a juror based upon his belief in the concept of jury nullifi-
cation, affirmed the trial court in December 2001. People v.
Merced, 114 Cal. Rptr. 2d 781, 782 (Ct. App. 2001). Merced
then appealed to the California Supreme Court, which denied
his petition for review. After exhausting his appeals in state
court, Merced brought a petition for habeas corpus in the fed-
eral district court. The district court denied the petition on
February 10, 2004, and Merced timely filed this appeal.
At trial, the jury questionnaire contained an open-ended
question, asking jurors to volunteer anything else “that [they]
feel that [they] should mention at this time that might affect
[their] ability to be fair and impartial juror[s] in this case.”
1In a separately filed memorandum disposition, we affirm the district
court’s denial of Merced’s other assignments of error: 1) that the trial
court committed three instructional errors that violated Merced’s due pro-
cess rights; 2) that the trial court constitutionally erred by permitting the
prosecution to comment upon the failure of the defense to call witnesses;
and 3) that the trial court erred by not striking Merced’s prior convictions
as constitutionally invalid.
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(emphasis added). Prospective alternate juror Andrew B.
answered as follows: “I recognize and believe in jury nullifi-
cation where appropriate.” After reviewing the questionnaires,
the trial judge called Mr. B. into the box and the following
colloquy ensued:
THE COURT: Mr. B____, . . . I appreciate your can-
dor, particularly No. 64 about jury nullification. I
mean, that’s your right. I have no problem with that.
My question is this: If you are selected on this jury,
and if I instructed you as to the law that implies [sic]
in the state of California and it went against your
conscience for whatever reason, is it reasonable for
me to assume that you would not follow the law as
I dictate it to you? [¶] MR. B____: It’s reasonable
for you to assume that. [¶] THE COURT: I’m going
to excuse you then Mr. B____. Thank you very
much.
Merced, 114 Cal. Rptr. 2d at 784.
II.
This court reviews the district court’s denial of a 28 U.S.C.
§ 2254 habeas petition de novo. Insyxiengmay v. Morgan, 403
F.3d 657, 665 (9th Cir. 2005). Under the Antiterrorism and
Effective Death Penalty Act of 1996, a habeas petition from
a person in custody pursuant to a state court conviction will
not be granted unless the decision “was contrary to, or
involved an unreasonable application of” established Supreme
Court precedent. 28 U.S.C. § 2254(d)(1). The federal court
must look to the decision of the highest state court to address
the merits of the petitioner’s claim in a reasoned decision.
LaJoie v. Thompson, 217 F.3d 663, 669 n.7 (9th Cir. 2000).
III.
[1] A juror’s ability to acquit “in the teeth of both law and
facts,” Horning v. District of Columbia, 254 U.S. 135, 138
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(1920), is a well-established power that defense counsel cor-
rectly observed “ha[s] been with us since Common Law
England.” Merced, 114 Cal. Rptr. 2d at 784; see also
Bushell’s Case, 124 Eng. Rep. 1006 (C.P. 1670) (releasing
jury foreman Bushell, who was arrested for voting to acquit
William Penn of unlawful assembly against the weight of the
evidence and the requirements of the law). Importantly, while
jurors have the power to nullify a verdict, they have no right
to do so. See Standefer v. United States, 447 U.S. 10, 22-23
(1980) (citations omitted). If jurors had a right to nullify, then
a court would have a correlative duty to safeguard their ability
to exercise this right. See Wesley Newcomb Hohfeld, Some
Fundamental Legal Conceptions as Applied in Judicial Rea-
soning, 23 Yale L.J. 16, 32 (1913) (describing a legal taxon-
omy in which a duty is the correlate of a right). But courts
manifestly do not have a duty to ensure a jury’s free exercise
of this power. See, e.g., United States v. Powell, 955 F.2d
1206, 1213 (9th Cir. 1992) (holding that courts have no duty
to provide nullification instructions to juries); United States v.
Dougherty, 473 F.2d 1113, 1136-37 (D.C. Cir. 1972) (same).
In fact, “it is the duty of juries in criminal cases to take the
law from the court, and apply that law to the facts as they find
them to be from the evidence.” Sparf v. United States, 156
U.S. 51, 102 (1895).
[2] The power to nullify is reenforced by a jury’s freedom
from recrimination or sanction for exercising this power after
the verdict has been reached. See United States v. Thomas,
116 F.3d 606, 615 (2d Cir. 1997) (“[I]n addition to the courts’
duty to safeguard the secrecy of the jury deliberation room . . .
the several rules protecting the unassailability of jury verdicts
of acquittal . . . serve to ‘permit [ ] juries to acquit out of com-
passion or compromise or because of their assumption of a
power which they had no right to exercise, but to which they
were disposed through lenity.’ ”) (quoting Standefer, 447 U.S.
at 22). Notwithstanding the unassailability of jury verdicts of
acquittal,
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[i]nasmuch as no juror has a right to engage in
nullification—and, on the contrary, it is a violation
of a juror’s sworn duty to follow the law as
instructed by the court—trial courts have the duty to
forestall or prevent such conduct, whether by firm
instruction or admonition or, where it does not inter-
fere with guaranteed rights or the need to protect the
secrecy of jury deliberations, . . . by dismissal of an
offending juror from the venire or the jury.
Id. at 616.
IV.
With this backdrop in place, we turn to a consideration of
the following question: was the California Court of Appeal’s
decision contrary to or an unreasonable application of the
appropriate federal standard for the removal of a juror for
cause? The court of appeal, in affirming the trial court, relied
upon People v. Holt, 15 Cal.4th 619 (Cal. 1997), to conclude
that “a prospective juror may be excused if the juror’s voir
dire responses convey a ‘definite impression’ that the juror’s
views ‘would prevent or substantially impair the performance
of his duties as a juror in accordance with his instructions and
his oath.’ ” Merced, 114 Cal. Rptr. 2d at 784 (quoting Holt,
15 Cal.4th at 650-51). In articulating this standard, Holt relied
upon the Supreme Court’s holding in Wainwright v. Witt, 469
U.S. 412, 424, 426 (1985). We hold that the court of appeal’s
decision neither contravened nor unreasonably applied clearly
established federal law.
Witt dealt with the removal for cause of a prospective juror
in a capital case because of her personal beliefs in opposition
to the death penalty. Witt is no less applicable here, even
though this is not a capital case. As Chief Justice Rehnquist,
writing for the majority in Witt, made clear:
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[T]here is nothing talismanic about juror exclusion
under Witherspoon [v. Illinois, 391 U.S. 510 (1968)]2
merely because it involves capital sentencing juries.
Witherspoon is not grounded in the Eighth Amend-
ment’s prohibition against cruel and unusual punish-
ment, but in the Sixth Amendment. Here, as
elsewhere, the quest is for jurors who will conscien-
tiously apply the law and find the facts.
Witt, 469 U.S. at 423.
[3] A juror’s refusal to inflict the death penalty because of
the personal demands of conscience over the firm dictates of
law is, of course, an example of juror nullification. Witt clari-
fied that the standard for removal for cause in Witherspoon
should not be understood to require a finding that the juror
would “automatically” nullify — i.e., vote against the death
penalty no matter the facts of the case. Id. at 422. Rather,
“whether or not a venireman might vote for death under cer-
tain personal standards, the State still may properly challenge
that venireman if he refuses to follow the statutory scheme
and truthfully answer the questions put by the trial judge.” Id.
But if the case before the venireman were one in which his or
her personal standards happened to coincide with the require-
ments of the law, the venireman could not be properly
excused for cause.
Importantly, “it cannot be assumed that a juror who
describes himself as having ‘conscientious or religious scru-
ples’ against the infliction of the death penalty or against its
infliction ‘in a proper case’ thereby affirmed that he could
never vote in favor of it or that he would not consider doing
so in the case before him.” Witherspoon, 391 U.S. at 515 n.9
(citation omitted). Similarly, it cannot be assumed that a pro-
spective juror who describes himself as believing in jury nul-
2Witherspoon was a case whose standard for removing “conscientious
objector” jurors in capital cases Witt sought to clarify.
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lification “where appropriate” thereby affirmed that he could
not refrain from doing so in the case before him.
[4] However, the fact that Mr. B. volunteered this informa-
tion in response to a question about his ability to remain
impartial “in this case” reasonably gave rise to a definite
impression of serious potential juror bias. Notwithstanding the
trial judge’s own inadequate justification — “[t]he [mere] fact
that he believes in jury nullification is enough for me as a
challenge for cause” — it was reasonable for the court of
appeal to find that the challenge was proper in this case. We
disagree with the court of appeal that a trial judge is never
required to ask a potentially nullifying prospective juror fur-
ther questions about the circumstances under which he would
nullify — including questions about the juror’s attitudes
toward the relevant statutory scheme under which the defen-
dant was charged — before excusing him for cause. See Mer-
ced, 114 Cal. Rptr. 2d at 782, 786. We note, however, that it
is the state court’s decision, as opposed to its reasoning, that
is judged under the “unreasonable application” standard. See,
e.g., Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002)
(observing that in habeas proceedings, “we are determining
the reasonableness of the state courts’ ‘decision,’ not grading
their papers”) (citing Cruz v. Miller, 255 F.3d 77, 86 (2d Cir.
2001)); id. (“the intricacies of the state court’s analysis need
not concern us; what matters is whether the decision the court
reached was contrary to controlling federal law”). We there-
fore conclude that the California Court of Appeal’s decision
neither contravened nor unreasonably applied clearly estab-
lished federal law.
V.
The extent to which a trial court should question a prospec-
tive juror who has expressed a willingness to follow his or her
conscience, come what may, depends upon the circumstances.
In this case, the trial judge never asked Mr. B. to explain
what, if any, particular circumstances he considered “appro-
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priate” for jury nullification. Rather, the judge simply posed
a hypothetical question, the answer to which revealed no more
information about Mr. B.’s likelihood to nullify in the case
before him than Mr. B.’s questionnaire did. Notwithstanding
the trial judge’s failure to glean more information about
whether Mr. B. was inclined to follow the dictates of his own
conscience rather than those of the law in the particular case
at hand, the fact that Mr. B. volunteered his belief in jury nul-
lification in response to a question about his ability to be an
impartial juror “in this case” was enough to create a definite
impression of potential bias.
[5] In other contexts of potential nullification, as in the
death penalty context, judges often carefully explore a pro-
spective juror’s possible willingness to nullify a verdict before
excusing him or her. See, e.g., Holt, 15 Cal.4th at 651-52. On
the facts of the present case, the trial judge was not obligated
to ask Mr. B. to flesh out in greater detail his volunteered
remark about his belief in jury nullification for the reasons
already discussed. But the judge was mistaken in assuming
that the mere fact of Mr. B.’s general belief in jury nullifica-
tion was enough to justify excusing him for cause. Suppose
the trial judge had independent knowledge of Mr. B.’s belief
in jury nullification — say, because he had written an article
on the subject or because he had appeared before the same
judge on a previous venire panel and had disclosed his belief
then. If Mr. B. had not said anything that would have indi-
cated his inability to be fair and impartial in this case, the
judge could not then have pointed to his independent knowl-
edge of Mr. B.’s belief in jury nullification “where appropri-
ate” as a legitimate reason for excusing him for cause. Witt’s
requirement of a “definite impression” of juror bias demands
more.
VI.
CONCLUSION
[6] Because the trial judge reasonably had a definite
impression that the prospective juror’s views “would prevent
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or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath,” Witt, 469
U.S. at 420 (quoting Adams v. Texas, 448 U.S. 38, 45 (1980),
we affirm the district court’s denial of Merced’s petition for
habeas corpus.
AFFIRMED.
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