Frausto v. Ndoh et al

1
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
EDGAR LOPEZ FRAUSTO1,
Petitioner,
v.
ANDRE GONZALES,
Acting Warden,
Respondent.
Case No.: 19cv544-BAS(LR)
REPORT AND
RECOMMENDATION FOR ORDER
DENYING AMENDED PETITION
FOR WRIT OF HABEAS CORPUS
[ECF No. 20]
This Report and Recommendation is submitted to the Honorable Cynthia A.
Bashant, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b)(1) and Civil
Local Rules 72.1(d) of the United States District Court for the Southern District of
California. On March 22, 2019, Petitioner Edgar Lopez Frausto, a state prisoner then
proceeding pro se, commenced these habeas corpus proceedings pursuant to 28 U.S.C.
1 The Court notes that, in Petitioner’s original federal Petition and in the state-court proceedings, his last
name appears as Lopez Frausto. (ECF No. 1; see also Lodgment 62; Lodgment 73.) In contrast, in the
Amended Petition, Answer, Traverse, and Sur-Reply, his name appears as Frausto Lopez. (ECF Nos.
20, 29, 31, 33.) Although the captioning is inconsistent, the docket makes clear that all filings pertain to
the same Petitioner. Accordingly, the Court will refer to him as Lopez Frausto, or as Petitioner.
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
1 of 34

2
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
§ 2254 by filing a Petition for Writ of Habeas Corpus (“Petition”). (ECF No. 1.) The
Court stayed the matter on July 31, 2019, pending resolution of a related habeas petition
in the San Diego County Superior Court. (ECF No. 9.) After Petitioner retained counsel,
Petitioner filed his Amended Petition for Writ of Habeas Corpus (“Amended Petition”)
on July 3, 2025, which is the operative pleading in this case. (ECF No. 20.) On
November 7, 2025, Respondent filed an Answer to Petitioner’s Amended Petition. (See
ECF No. 29.) Petitioner thereafter filed a Traverse on December 5, 2025, and
Respondent filed a Sur-Reply on January 14, 2026. (ECF Nos. 31, 33.)
This Court has considered the Amended Petition, Answer, Traverse, Sur-Reply,
and all supporting documents filed by the parties. For the reasons set forth below, the
Court RECOMMENDS that Petitioner’s Amended Petition for Writ of Habeas Corpus
be DENIED.
I. FACTUAL BACKGROUND
The following facts are taken from the California Court of Appeal’s opinion in
People v. Lopez-Frausto, Appeal No. D069241. (See Lodgment 62.) This Court
presumes the state court’s factual determinations to be correct, absent clear and
convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1); Miller-El v. Cockrell,
537 U.S. 322, 340 (2003).
A. General Background
The Arellano-Felix Organization (AFO) is a drug cartel in
Tijuana, Mexico. The AFO hierarchy consists of leaders, followed by
multiple lieutenants, then cells that perform different functions. The
cells have their own names and work semi-independently with their
own crews. A crew consists of individuals who work for a cell leader
and perform functions that further the organization. Cells and their
crews specialize in different functions such as kidnapping, drug
distribution or paying off public officials.
AFO leaders included Javier Arellano-Felix (El Tigrillo) and
his nephew, Fernando Sanchez-Arellano (El Ingeniero). Jorge
Briceno Lopez (Cholo), the brother-in-law of El Tigrillo, led one
crew. Victor Rojas, also known as El Palillo (Toothpick), headed
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
2 of 34

3
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
another crew called Los Palillos. Lopez [Frausto], also known as Tita
(Monkey), was a Los Palillos member.
Cholo and Lopez got into a confrontation, resulting in Lopez
pulling a gun on Cholo. Cholo demanded that El Palillo hand Lopez
over to him. When El Palillo refused, the AFO had him killed, and
authorized the murder of the rest of the crew. The Los Palillos group
then split from the AFO around 2003 or 2004 and fled to San Diego
from Tijuana. El Palillo’s brother, Jorge Rojas-Lopez (Palillo),
became the leader of Los Palillos. Los Palillos was motivated to
avenge the death of El Palillo by hurting people associated with the
AFO.
Members of Los Palillos included Lopez, his brother Ponciano
Lopez-Frausto (Pelon), Palillo, Jorge Altamirano-Lopez (Chuckie),
Hector Altamirano-Lopez (Teran), Jesus Gonzalez-Trujillo
(Compadre), Armando Rodriguez (Chipo), Jorge Moreno (Homie),
and Guillermo Moreno (Memo). The group also associated with men
from the “Cuban Mafia” in another city, including Jhanmay Molina-
Perez and Jose Olivera-Beritan (Chino). An expert opined that Los
Palillos is a criminal street gang whose primary activities included
drug trafficking, kidnapping and murder. The number of people in
Los Palillos ranged from three to 15 or 20. The motivating factors
behind crimes committed by Los Palillos include greed, revenge and
financial gain.
B. Unsolved Murders
In August 2004 police were notified of a parked Dodge Caravan
that smelled and had something red running out of the vehicle. Inside
the van were three bodies. The three victims were later identified as
Teodulo Andrade-Espinoza, Jaime Gomez-Coronado and Guadalupe
Herrera-Becerra. Andrade-Espinosa died of a gunshot wound to his
abdomen, while Gomez-Coronado and Herrera-Becerra died of
asphyxiation after having a sock stuffed in their mouths and their
heads wrapped in duct tape.
In early August 2005 police found a body, later identified as
Francisco Javier Olguin-Verdugo dumped on the side of a road in
Chula Vista. Olguin-Verdugo died from strangulation. In late August
2005 police found a body, later identified as Camaron, down the side
of an embankment in Bonita. All three cases went unsolved and grew
cold.
In January 2008 police arrested Memo, a friend of Lopez’s. In
August 2008 Memo entered into a cooperation agreement with law
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
3 of 34

4
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
enforcement. Memo admitted [sic] participating in all these murders
and implicated Lopez in the murders.
C. Camaron’s Kidnapping and Murder
Camaron was a prominent figure in the AFO. Camaron’s
brother, Victor L. (El Pareja), was a lieutenant in the AFO. In 2005
Camaron and his wife Adrianna C. lived in a home in Bonita.
On August 18, 2005, Adrianna went to Tijuana to run errands.
That afternoon Adrianna called Camaron from a McDonald’s in
Bonita and had him bring her some cash to purchase dinner. He
arrived in his BMW, gave her $20, and left. Adrianna purchased the
food and went home where she saw Camaron’s BMW in the
driveway. Camaron was not there and she was unable to reach him by
telephone.
Adrianna later received a call from her brother-in-law, El
Pareja, and learned that Camaron had been kidnapped. Adrianna went
to Tijuana to meet El Pareja. While Adrianna and El Pareja were
talking, El Pareja received a call on his radio phone. Adrianna
overheard a voice tell El Pareja, in Spanish, that “they” were going to
kill Camaron and to start gathering money. Adrianna heard Camaron
ask El Pareja to pay the money to prevent Camaron’s murder. El
Pareja told Adrianna not to talk to anyone and gave her a phone to
communicate with him.
Adrianna returned to the United States and reported the
kidnapping to the police. The following night, El Pareja called
Adrianna and told her that he had paid the ransom money. The next
day, a detective told Adrianna that Camaron was dead.
The morning of August 20, 2005, Camaron’s body was
discovered in Bonita down the side of an embankment lying on a blue
tarp. Camaron’s hands were bound, he had severe facial stab wounds
and burn marks on his body.
An autopsy of Camaron’s body revealed numerous petechial
hemorrhages in his eyes, which tend to form when strangulation is not total
or complete. He had bruising and blunt force trauma to his eyes and head,
consistent with direct impact. Camaron also had burn blisters on his lower
neck and upper chest, likely caused by a Taser. Camaron suffered about 13
separate nonfatal impacts to his face and head. He had four broken ribs
likely caused by being struck with a battering ram.
(Lodgment 62 at 3–6.)
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
4 of 34

5
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
II. PROCEDURAL BACKGROUND
A. Petitioner’s Criminal Conviction and Direct Appeal
On October 23, 2015, a jury convicted Petitioner of first-degree murder (count 6,
Cal. Penal Code § 187(a)), kidnapping for ransom with the infliction of great bodily harm
(count 5, Cal. Penal Code § 209(a)), and returned true findings on the special
circumstances of kidnaping (Cal. Penal Code § 190.2(a)(17)(b)), torture (Cal. Penal Code
§ 190.2(a)(18)), and criminal street gang activity (Cal. Penal Code § 186.22(b)).
(Lodgment 4 at 880–84; Lodgment 42 at 8730–41.) The trial court declared a mistrial on
additional murder charges (counts 1–4) due to juror misconduct. (Lodgment 4 at 885–
87.) Petitioner was sentenced to two consecutive life terms in state prison without the
possibility of parole. (Lodgment 2 at 522–23; Lodgment 4 at 900–02; Lodgment 49 at
10299–10301.)
A second jury convicted Petitioner of making criminal threats against sheriff’s
deputies (Cal. Penal Code § 422) while he was awaiting trial for his murder and
kidnapping charges. (Lodgment 1 at 271–73; Lodgment 46 at 9649.) The trial court
sentenced him to sixty years to life. (Lodgment 1 at 180–83; 284–85; Lodgment 49 at
10288–89.)
Petitioner filed a consolidated appeal from both convictions to the California Court
of Appeal, arguing the following with respect to his murder and kidnaping case: (1) the
trial court erred by failing to conduct an inquiry after it was advised of potential juror
bias; (2) insufficient evidence corroborated the accomplice’s testimony; and (3) a rebuttal
witness gave improper opinion on the veracity of the accomplice. (See Lodgment 57 at
40–71.) Petitioner further argued the following with respect to his criminal threats case:
(1) the trial court improperly removed a juror during deliberations; (2) the prosecutor
committed misconduct during rebuttal argument by mischaracterizing the presumption of
innocence and diluting the burden of proof; and (3) the California Court of Appeal should
independently review sealed police personnel records. (See id. at 73–98.) On January
26, 2018, the California Court of Appeal found that: (1) the trial court had no sua sponte
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
5 of 34

6
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
duty to inquire regarding the alleged juror misconduct; (2) corroborating evidence
supported the accomplice testimony; (3) the rebuttal witness did not improperly vouch for
the accomplice’s veracity; (4) the trial court did not err in removing a holdout juror
during deliberations; (5) the prosecutor did not commit misconduct because there was no
reasonable likelihood the jury understood or misapplied the prosecutor’s argument; and
(6) the trial court did not abuse its discretion when it denied Petitioner’s motion.
(Lodgment 62 at 17, 24, 25, 49, 55–56.)
On March 7, 2018, Petitioner filed a petition for review in the California Supreme
Court, raising the same claims he raised before the state appellate court. (See Lodgment
63; see also Lodgment 57.) The California Supreme Court denied the petition on May 9,
2018. (See Lodgment 64.)
B. Petitioner’s State Habeas Petitions
On August 8, 2017, Petitioner filed a habeas petition in the California Court of
Appeal, alleging that (1) a juror committed misconduct by lying on her questionnaire and
providing other jurors with extraneous information, and (2) trial counsel rendered
ineffective assistance by failing to investigate juror misconduct and move for a new trial.
(See Lodgment 60.) On January 26, 2018, the California Court of Appeal ordered the
prosecution to show cause, returnable before the Superior Court of San Diego County,
why the relief requested in the petition should not be granted. (See Lodgment 68.) In
response to the order to show cause issued by the California Court of Appeal, on
September 16, 2019, the Superior Court conducted a four-day evidentiary hearing and
denied the petition on the merits. (See Lodgments 73, 78–79.) On October 13, 2020,
Petitioner then sought relief in the California Court of Appeal, which adopted the
Superior Court’s reasoning and denied the petition on October 30, 2020. (Lodgments
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
6 of 34

7
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
74–75.) Finally, Petitioner presented his habeas claims to the California Supreme Court,
which denied relief on July 24, 2024. (See Lodgments 76–81.)
C. Petitioner’s Federal Habeas Petition
On March 22, 2019, Petitioner filed his federal Petition in the United States
District Court for the Southern District of California. (ECF No. 1.) On July 31, 2019, the
District Court stayed the federal Petition pending the resolution of Petitioner’s state
habeas proceedings. (ECF No. 9.) On July 3, 2025, Petitioner filed an Amended
Petition, the operative pleading, asserting the following: (1) the trial court erred by
allowing counsel for the prosecution’s principal witness, a cooperating accomplice, to
testify regarding her client’s credibility, and (2) juror misconduct denied him his right to
a fair and impartial jury, based on a juror’s association with a rival gang, disclosure of
extrinsic evidence during deliberations, and statements during deliberations reflecting
bias against Petitioner. (ECF No. 20-1 at 9.) On November 7, 2025, Respondent filed an
Answer to the Amended Petition arguing that the state courts’ denial precludes federal
relief. (ECF No. 29.) Petitioner filed a Traverse on December 5, 2025, and Respondent
filed a Sur-Reply2 on January 14, 2026. (ECF Nos. 31, 33.)
III. SCOPE OF REVIEW
Petitioner’s Amended Petition is governed by the provisions of the Antiterrorism
and Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320, 326
(1997). Under 28 U.S.C. § 2254(d), as amended by AEDPA:
(d) An application for a writ of habeas corpus on behalf of a person in
custody pursuant to the judgment of a State court shall not be granted with
respect to any claim that was adjudicated on the merits in State court
proceedings unless the adjudication of the claim—
2 The Court notes that in the Amended Petition, Petitioner sought habeas relief under 28 U.S.C. §
2254(d)(2). (ECF No. 20-1 at 45–46.) However, in the Traverse, Petitioner for the first time advanced a
theory of relief under 28 U.S.C. § 2254(d)(1). (ECF No. 31-1 at 5–9.) In light of this new theory, the
Court invited a Sur-Reply from Respondent. (See ECF No. 33.)
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
7 of 34

8
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
(1) 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; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.
28 U.S.C. § 2254(d); see also Early v. Packer, 537 U.S. 3, 7–8 (2002). In making this
determination, a reviewing federal court must first identify the appropriate state court
decision to review. Where there is no reasoned decision from the state’s highest court,
the reviewing federal court “should ‘look through’ the unexplained decision to the last
related state-court decision that does provide a relevant rationale” and “presume that the
unexplained decision adopted the same reasoning.” Wilson v. Sellers, 584 U.S. 122,
125–26 (2018); see also Ylst v. Nunnemaker, 501 U.S. 797, 803–04 (1991) (providing
that a reviewing federal court may “look through” to the last reasoned state court
decision).
A state court’s decision is “contrary to” clearly established federal law if the state
court (1) “applies a rule different from the governing law set forth in [United States
Supreme Court] cases,” or (2) “decides a case differently than [the United States Supreme
Court] has done on a set of materially indistinguishable facts.” See 28 U.S.C.
§ 2254(d)(1); Bell v. Cone, 535 U.S. 685, 694 (2002); Williams v. Taylor, 529 U.S. 362,
405–06 (2000). An “unreasonable application” of clearly established federal law occurs
where the state court “identifies the correct governing legal principle [from the United
States Supreme Court’s decisions] but unreasonably applies that principle to the facts of
the prisoner’s case.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (quoting Williams, 529
U.S. at 413). “[A] federal habeas court may not issue [a] writ simply because that court
concludes in its independent judgment that the relevant state-court decision applied
clearly established federal law erroneously or incorrectly. Rather, that application must
be objectively unreasonable.” Id. at 75–76 (citations and internal quotation marks
omitted). Clearly established federal law “refers to the holdings, as opposed to the dicta,
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
8 of 34

9
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
of [the United States Supreme] Court’s decisions as of the time of the relevant state-court
decision.” Williams, 529 U.S. at 412.
Habeas relief is also available where the state court’s adjudication of a claim
“resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the [s]tate court proceeding.” 28 U.S.C. § 2254(d)(2);
see also Wood v. Allen, 558 U.S. 290, 293 (2010). A reviewing federal court will not
overturn a state court’s decision on factual grounds unless the federal court finds that the
state court’s factual determinations were objectively unreasonable in light of the evidence
presented in state court. See Miller-El, 537 U.S. at 240; see also Rice v. Collins, 546
U.S. 333, 341–42 (2006) (the fact that “[r]easonable minds reviewing the record might
disagree” does not render a decision objectively unreasonable). This Court will presume
that the state court’s factual findings are correct, and Petitioner may overcome that
presumption only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Schriro
v. Landrigan, 550 U.S. 465, 473–74 (2007) (explaining that that federal habeas courts
“presume the correctness of state courts’ factual findings unless applicants rebut this
presumption with ‘clear and convincing evidence.’”).
IV. DISCUSSION
A. Habeas Relief is Not Warranted with Respect to Petitioner’s Claim that
Prosecutor Engaged in Improper Vouching for the Accomplice’s Credibility
1. Parties’ arguments
In his Amended Petition, Petitioner argues that the prosecution engaged in
improper vouching by using accomplice and principal witness Guillermo “Memo”
Moreno’s defense attorney, Elizabeth Missakian, to vouch for Moreno’s credibility.
(ECF No. 20-1 at 7.) Petitioner asserts that the prosecutor improperly vouched for
Moreno’s credibility by eliciting testimony from Missakian regarding how the
prosecution would not have entered into a cooperation agreement with Moreno unless
they corroborated his statements. (Id. at 14–16.) Petitioner further asserts that the
prosecutor elicited Missakian’s opinion on Moreno’s credibility and her decision to
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
9 of 34

10
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
advise him to enter into a cooperation agreement based on her dealings with him. (Id.)
Petitioner contends that the prosecutor used Missakian’s testimony to cause the jury to
infer that (1) the prosecution would not have offered Moreno a cooperation agreement
unless it had sufficiently corroborated Moreno’s “free talk” statements and determined he
was truthful; (2) other evidence, such as airline and utility records, corroborated
Moreno’s statements; (3) Missakian would not have allowed her client to enter into the
agreement unless she believed he was truthful; (4) if Moreno were not telling the truth,
law enforcement would not have discovered and exposed that fact; and (5) for these
reasons, the jurors should believe Moreno. (Id. at 17.) Petitioner states that because
Moreno was the key witness at trial, any error affecting his credibility was prejudicial,
and the alleged improper vouching therefore violated Petitioner’s right to due process
under the Fifth and Fourteenth Amendments of the United States Constitution. (Id.
(citing Darden v. Wainwright, 477 U.S. 168, 180–81 (1986).) Petitioner therefore argues
that his state criminal convictions should be vacated pursuant to 28 U.S.C. § 2254 (d)(2).
(Id. at 45–46.)
Respondent contends that the California Court of Appeal rejected Petitioner’s
appeal on the merits and that the state courts applied the appropriate legal authority to
Petitioner’s claims, so the relitigation bar applies under 28 U.S.C § 2254(d)(2) and
forecloses relief. (ECF No. 29-1 at 8–9.) Respondent states that because Petitioner
argues that the state court erred in applying the law to the facts, the relitigation bar
confines Petitioner to the state court record, where factual findings enjoy a presumption
of correctness that bars new evidence. (Id. at 9 (citing Cullen v. Pinholster, 563 U.S. 170,
183–84 (2011).) Respondent further maintains that the state appellate court correctly
found that there was no evidence in the record relieving the jury of its duty to assess
accomplice Moreno’s credibility independently, no indication of external corroboration
for Moreno, and no opinion from his attorney, Elizabeth Missakian, that he was truthful.
(Id. at 10.) Respondent contends that these findings are supported by the record, satisfy
28 U.S.C. § 2254(d)(2), and are “now insulated from challenge under 28 U.S.C. §
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
10 of 34

11
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
2254(e).” (Id.) Respondent also points out that in his Amended Petition, Petitioner
agrees that the state courts applied the appropriate legal authority to his claims as stated
in 28 U.S.C. § 2254(d)(1). (Id. at 9 (citing ECF No. 20-1 at 44–45).) Finally,
Respondent asserts that Petitioner improperly relies on circuit authority because the
relitigation bar restricts this Court to authority from the Supreme Court of the United
States regarding constitutional claims. (Id. (citing Thaler v. Haynes, 559 U.S. 43, 47–49
& n.2 (2010).)
Notably, in his Traverse, Petitioner asserts for the first time that the prosecution
violated his Fourteenth Amendment right to due process by allowing Missakian to testify
about Moreno’s credibility, constituting improper vouching contrary to and an
unreasonable application of clearly established precedent of the Supreme Court of the
United States under 28 U.S.C. § 2254(d)(1). (ECF No. 31-1 at 5.) Accordingly, the
Court addresses Petitioner’s arguments.
2. Elizabeth Missakian’s testimony
At Petitioner’s kidnapping and murder trial, the prosecution called defense attorney
Elizabeth Missakian—counsel for accomplice and principal witness Guillermo “Memo”
Moreno—as a rebuttal witness. (See Lodgment 37 at 6158–6212.) On direct
examination, Missakian testified regarding the need for corroboration before entering into
a cooperation agreement:
Q [prosecutor]: What was your understanding as to what needed to occur after
the free talk but prior to entering into a cooperation agreement?
A [Missakian]: I think the primary thing that needed to occur was that the
prosecution needed to corroborate my client’s statements.
Q: What’s your—how can you explain corroboration? What did you
understand that to require?
A: It requires finding evidence in addition to or to confirm or corroborate what
the client says.
If I say, “I killed John and I dumped his body”—John—John and— “Me and
Jane killed John. And we dumped his body at x location,” one bit of
corroboration might be to go to that location to find out if the body is there.
Another might be to talk to Jane. So you—the prosecution tries to find other
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
11 of 34

12
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
evidence to see if, in this case, Mr. Moreno’s statements could be confirmed
or corroborated.
Q: And—
A: It’s a test to see if he’s telling the truth.
Q: Could that and, in fact, did that include obtaining airline records?
A: Yes.
Q: Utility records?
A: Yes.
[Defense counsel]: Your Honor, I’m going to object to this as outside the
province of an expert and is the province—
The Court: I think we’re outside of rebuttal.
[Defense counsel]: —of the jury. Corroboration is a question for the jury.
The Court: Correct.
I’l sustain. Also, I think—I think it’s also outside of what I thought the
rebuttal would be.
But keep going.
Q [prosecutor]: The existence of corroboration, without going into the details
of what it may have consisted of, was that then an important consideration in
your mind as to whether or not there would ultimately be a cooperation
agreement with your client and the district attorney’s office?
A: Yes.
[Defense counsel]: Once again, that’s argumentative.
The Court: Yeah. Sustained.
Q: Did you take into consideration the existence of corroboration in exploring
future cooperation?
[Defense counsel]: Arg—that’s outside the province of an expert. It’s the
province of the jury.
The Court: Okay. I’m going to sustain.
(Id. at 6186–88.)
Missakian also testified regarding Moreno’s commitments and obligations under his
cooperation agreement with the prosecution:
Q [prosecutor]: What are his commitments?
A [Missakian]: That he would cooperate fully with law enforcement in their
investigation of crimes committed by members of Los Palillos. That he would
provide truthful and complete information to all crimes known to him that had
been committed by Los Palillos members.
His most important obligation was to tell the truth at all times while he was
testifying and while the case was being investigated. And he understood that
any intentional deviation from the truth would void the agreement and cause
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
12 of 34

13
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
him to lose all of the benefits. He also agreed and understood that if he should
lie under oath and commit perjury, that he could be charged with perjury.
Q: This obligation to tell the truth, is that something that you discussed with
him privately even before meeting—sitting down on August 20th, 2008?
A: Oh yes.
Q: Was that—did that have a certain level of importance to you in entering
into an agreement with him?
A: It’s of primary importance.
Q: Why?
A: When you enter into a cooperation agreement, if you—what is the point if
you’re not going to tell the truth? You have to tell the truth during the
cooperation agreement. That’s the way you get the benefit. If you don’t tell
the truth, and it’s found out—and it generally can be found out. If you don’t
tell the truth, you could lose the benefit of the plea agreement. So there is no
point to entering into a plea agreement unless you’re going to tell the truth.
Q: And are there, in fact, dangers associated with not telling the truth,
consequences, potential consequences—
A: Of course.
Q: —if you entered into a cooperation agreement, give information, and then
intentionally lie?
A: Yes. The plea agreement will be void. Then you’re facing all the charges
that you were facing before and potentially additional charges.
Q: Was there ever a—oh, and before I move on from that. It’s clear you
understood that then; correct?
A: Yes.
Q: Did you make sure that Mr. Moreno understood it as well?
A: Yes.
Q: How did you make sure he understood that obligation to tell the truth?
A: I talked to him about it when I met with him privately at the jail. I talked
to him about it when I met with him privately at the district attorney’s office.
I emphasized it. I always emphasize it. There’s no point to doing this unless
you’re going to tell the truth.
Q: And similarly given his reactions to you, did you form an opinion as to
whether or not Guillermo Moreno understood that obligation?
A: I believe he understood it.
Q: Was there—is there any requirement in this agreement that Guillermo
Moreno implicate any particular individual in the organization?
A: No.
Q: Other than his name, are there any names in that cooperation agreement
that he needs to provide information on?
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
13 of 34

14
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
A: No. Just—the only information is that he’s going to cooperate with law
enforcement in the prosecution of crimes committed by members of Los
Palillos but no names are mentioned.
Q: Is there any requirement that Guillermo Moreno implicate a certain number
of individuals in crimes?
A: No
Q: Is there any obligation that Guillermo Moreno give information about a
certain number of crimes themselves?
A: No.
Q: Is there any obligation for Guillermo Moreno to give information about a
certain number of murders?
A: No.
Q: In your discussions with your client, did he ever express to you information
that led you to believe that Guillermo Moreno felt he had to implicate certain
individuals in crimes?
A: No.
[Defense counsel]: I’m going to object.
The Court: Yeah. This is [California Evidence Code section] 352.
(Id. at 6192–95.)
During a sidebar conference, defense counsel objected that the prosecution was
making Missakian a “human lie detector.” The court disagreed, observing that the
prosecutor never asked whether she believed Moreno was telling the truth. (Id. at 6195–
98.)
3. Analysis
a. Procedural bar
While the purpose of a federal habeas proceeding is to search for violations of
federal law, in the context of a prisoner “in custody pursuant to the judgment of a State
court,” 28 U.S.C. § 2254(d)–(e), not every error justifies relief. Where the state court has
rejected a claim on the merits, “a federal habeas court may not issue the writ simply
because that court concludes in its independent judgment that the state-court decision
applied [the law] incorrectly.” Woodford v. Visciotti, 537 U.S. 19, 24–25 (2002) (per
curiam); see also Johnson v. Williams, 568 U.S. 289, 293 (2013) (adopting a rebuttable
presumption that a federal claim rejected by a state court without being expressly
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
14 of 34

15
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
addressed was adjudicated on the merits). Rather, in such cases, 28 U.S.C. § 2254(d)
provides restrictions on the habeas court’s ability to grant habeas relief based on legal or
factual error. This statute “reflects the view that habeas corpus is a ‘guard against
extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary
error correction through appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011).
To justify habeas relief based on legal error, a state court’s merits-based decision
must be “contrary to, or involve[] an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” before relief may
be granted. See 28 U.S.C. § 2254(d)(1). The Supreme Court has instructed that a state
court decision is “contrary to” clearly established federal law “if the state court applies a
rule that contradicts the governing law set forth in [Supreme Court] cases or if the state
court confronts a set of facts that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different from [its] precedent.”
Lockyer, 538 U.S. at 73 (internal quotation marks omitted). To show an unreasonable
application, “a state prisoner must show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded
disagreement.” Harrington, 562 U.S. at 103.
Here, the California Court of Appeal found that Missakian’s testimony was not
improper vouching because her testimony explained what was needed for a cooperation
agreement and gave examples of potential corroboration. (Lodgment 62 at 32.) The
appellate court, relying on People v. Bonilla, 41 Cal. 4th 313, 337 (2007), held that while
the jury could infer a belief in corroboration, there was no evidence indicating that the
jury relied on information outside the record or that it was relieved of evaluating
corroborating evidence. (Id.) The appellate court also found that Missakian testified
about Moreno’s obligation to tell the truth, confirmed she discussed it with him, and
stated that Moreno understood that duty, but Missakian never opined that Moreno’s
testimony was truthful. (Id. at 33.) Therefore, the state appellate court rejected
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
15 of 34

16
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Petitioner’s claim on the merits. Accordingly, an application for a writ of habeas corpus
shall only be granted if it is subject to the exceptions in 28 U.S.C. § 2254(d)(1)–(2). See
Harrington, 562 U.S. at 98 (“By its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1)
and (2).”). In his Amended Petition, Petitioner concedes that the California courts
applied the correct legal authority and argues that his convictions should be vacated
pursuant to 28 U.S.C § 2254(d)(2). (ECF No. 20-1 at 44–45). Therefore, based on the
Amended Petition, this claim does not fall under the “contrary to” clause of 28 U.S.C §
2254(d)(1).
However, in his Traverse, Petitioner argues for the first time that the state court’s
decision was both contrary to clearly established federal law and an unreasonable
application of the law to the facts as set forth in 28 U.S.C. § 2254(d)(1). (ECF No. 31-1
at 5.) “A Traverse is not the proper pleading to raise additional grounds for relief.”
Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994); see also Collins v. Uribe,
564 F. App’x 343, 343–44 (9th Cir. 2014) (quoting Delgadillo v. Woodford, 527 F.3d
919, 930 n.4 (9th Cir. 2008)) (“Arguments raised for the first time in petitioner’s reply
brief are deemed waived.”). Because, in his Traverse, Petitioner raises a new theory
pursuant to 28 U.S.C. § 2254(d)(1), and Respondent did not address it in its Answer, the
Court is justified in treating the new theory as procedurally defaulted. (ECF No. 29-1 at
9)); Cacoperdo, 37 F.3d at 507 (“In order for the State to be properly advised of
additional claims, they should be presented in an amended petition, or . . . in a statement
of additional grounds.”).
The Court notes that Petitioner clearly requests relief on the ground of improper
vouching. (See ECF No. 20-1 at 14–18; ECF No. 31-1 at 5–9.) However, it is unclear as
to which subsection of 28 U.S.C. § 2254(d) he requests relief. As discussed above,
Petitioner initially raised a claim for relief under 28 U.S.C. § 2254(d)(2), in his Amended
Petition, (ECF No. 20-1 at 45–46), but raised a claim under 28 U.S.C. § 2254(d)(1) in his
Traverse, (ECF No. 31-1 at 5–9). In its Answer, Respondent addressed the claim
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
16 of 34

17
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
pursuant to 28 U.S.C. § 2254(d)(2), and given the theory raised in Petitioner’s Traverse,
the Court invited a Sur-Reply from Respondent.
In the Sur-Reply, Respondent first argues that Petitioner failed to exhaust his
“prosecutorial misconduct” claim, so it is now procedurally barred. (ECF No. 33 at 1.)
The Court disagrees and finds that the claim was exhausted on direct appeal to the
California Court of Appeal, where Petitioner argued that “the prosecutor elicited
testimony that the prosecutor would not have entered into a cooperation agreement with
[Moreno] until they corroborated his free talk statements as a test of his truthfulness,”
which he characterized as improper, and the California Court of Appeal adjudicated that
claim. (Lodgment 57 at 66; see also Lodgment 62 at 24–34.) Respondent next argues
that the vouching claim fails on the merits. (ECF No. 33 at 2–3.) The Court addresses
that argument below.
b. Vouching
Assuming that Petitioner’s improper vouching claim is not barred by 28 U.S.C. §
2254(d), the claim fails on the merits. Petitioner argues that the state court’s decision
was contrary to clearly established federal law and an unreasonable application of the law
to the facts as set forth in 28 U.S.C. § 2254(d)(1). (See ECF No. 31-1 at 5–11.)
This Court must “first decide what constitutes ‘clearly established Federal law, as
determined by the Supreme Court of the United States.’” Lockyer, 538 U.S. at 71
(quoting 28 U.S.C. § 2254(d)(1)). In ascertaining what is “clearly established Federal
law,” this Court must look to the “holdings, as opposed to the dicta, of [the Supreme
Court’s] decisions as of the time of the relevant state-court decision.” Williams, 529 U.S.
at 412. In other words, “clearly established Federal law” under § 2254(d)(1) is the
governing legal principle or principles set forth by the Supreme Court at the time the state
court renders its decision. Id. at 382. In addition, the Supreme Court decision must
“squarely address[ ] the issue in th[e] case[;]” otherwise, there is no clearly established
Federal law for purposes of review under AEDPA. Moses v. Payne, 555 F.3d 742, 754
(9th Cir. 2009) (quoting Wright v. Van Patten, 552 U.S. 120, 125 (2008)); see also Carey
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
17 of 34

18
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
v. Musladin, 549 U.S. 70, 74 (2006) (stating that “federal habeas may be granted [ ] if the
California Court of Appeal’s decision was contrary to or involved an unreasonable
application of [the United States Supreme] Court’s applicable holdings.”).
Generally, prosecutorial misconduct claims are cognizable in federal habeas
corpus. See Darden v. Wainwright, 477 U.S. 168, 181 (1986); United States v. Young,
470 U.S. 1, 6–8 (1985). The appropriate standard of review is the “narrow one of due
process, and not the broad exercise of supervisory power.” See Darden, 477 U.S. at 181.
A defendant’s due process rights are violated when a prosecutor’s misconduct renders a
trial “fundamentally unfair.” See id. Under Darden, the first issue is whether the
prosecutor’s remarks were improper; if so, the next question is whether such conduct
infected the trial with unfairness. See id.; Tan v. Runnels, 413 F.3d 1101, 1112 (9th Cir.
2005).
A prosecutor may not vouch for the credibility of a witness. “Vouching consists of
placing the prestige of the government behind a witness through personal assurances of
the witness’s veracity, or suggesting that information not presented to the jury supports
the witness’s testimony.” United States v. Necoechea, 986 F.2d 1273, 1276–79 (9th Cir.
1993) (finding that prosecutorial vouching occurred when a prosecutor referred to facts
not in the record). “As a general rule, a prosecutor may not express his opinion of the
defendant’s guilt or his belief in the credibility of the government witnesses.” Id. at 1276
(citation and internal quotation marks omitted). Such misconduct poses two dangers: it
may lead the jury to convict on the basis of evidence not presented, and it “carries with it
the imprimatur of the Government.” Young, 470 U.S. at 18–19. To warrant habeas
relief, prosecutorial vouching must so infect the trial with unfairness as to make the
resulting conviction a denial of due process. Davis v. Woodford, 384 F.3d 628, 644 (9th
Cir. 2004) (citing Darden, 477 U.S. at 181 (prosecutorial misconduct violates due process
when it renders a trial “fundamentally unfair”)).
Here, the Court concurs with the California Court of Appeal’s analysis and
conclusion that Petitioner has not shown that the prosecutor engaged in improper
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
18 of 34

19
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
vouching. (See Lodgment 62 at 29–34.) The prosecutor, through Missakian’s testimony,
did not invoke the prestige of the government to assure Moreno’s truthfulness, but instead
asked her to describe, in general terms, what must occur before the prosecution enters a
cooperation agreement. (Lodgment 37 at 6186.) Missakian responded to the
prosecutor’s questioning by stating that “the prosecution needed to corroborate
[Moreno’s] statements,” explained that corroboration required “finding evidence in
addition to or to confirm or corroborate what the client says,” and further provided the
jury with examples of corroboration. (Id. at 6187.) This line of questioning simply
informed the jury of the corroboration requirement without suggesting that the prosecutor
possessed information outside the record or opined on Moreno’s credibility. See United
States v. Tavakkoly, 238 F.3d 1062, 1065 (9th Cir. 2001) (finding that a prosecutor may
ask a witness generally about their cooperation agreement with the government).
Petitioner’s reliance on United States v. Francis, 170 F.3d 546, 550–51 (6th Cir.
1999) is unpersuasive. (See ECF No. 20-1 at 14–16.) In Francis, the prosecutor both tied
a sentencing recommendation to a personal belief in the witness’s truthfulness and
elicited testimony that a plea agreement materialized only after the prosecutor came to
believe the witness. Francis, 170 F.3d at 550–51. The court found that the conduct
directly linked the government’s power and the prosecutor’s personal assessment to the
witness’s credibility. Id. By contrast, in this case, the prosecutor never suggested that
Moreno was truthful based on information outside the record or on a personal credibility
determination; instead, the prosecutor merely elicited Missakian’s general understanding
of corroboration and cooperation agreements without any inquiry as to whether she
believed that Moreno was truthful in his testimony. Accordingly, the prosecutor’s
examination of Missakian did not constitute improper vouching.
The Court also finds that, contrary to the Petitioner’s assertion, the prosecutor did
not invoke the prestige of the government to portray Missakian as a “human lie detector”
when questioning Missakian about Moreno’s obligations under the cooperation
agreement. The prosecutor asked what Moreno’s commitments were under the
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
19 of 34

20
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
cooperation agreement. (Lodgment 37 at 6192.) Missakian testified that Moreno was
obligated to tell the truth, that failure to do so would void the agreement, and ensured that
Moreno understood his obligation to tell the truth. (Id. at 6192–94.) Neither the
prosecutor nor Missakian opined that Moreno did, in fact, testify truthfully. Additionally,
Petitioner’s defense witness, Gloria Collins, likewise testified that cooperating
individuals had the obligation to tell the truth, further underscoring that this was a
description of standard practice rather than an endorsement of Moreno’s credibility.
(Lodgment 36 at 6065–67.) Thus, the prosecutor did not vouch for Moreno’s truthfulness
by inquiring into the obligations imposed by the cooperation agreement. See United
States v. Ortiz, 362 F.3d 1274, 1278 (9th Cir. 2004) (finding that there is no prosecutorial
vouching by simply eliciting “on direct examination a witness’s obligation through a plea
agreement to tell the truth”); see also United States v. Daas, 198 F.3d 1167, 1178 (9th
Cir. 1999) (finding that there is no prosecutorial vouching when the prosecutor did not
make any assurances of veracity, either explicitly or implicitly.).
Moreover, even assuming the prosecutor’s questioning was improper, it did not
rise to the level of a due process violation. Generally, prosecutorial misconduct violates
due process when it has a “substantial and injurious effect or influence in determining the
jury’s verdict.” See Ortiz–Sandoval v. Gomez, 81 F.3d 891, 899 (9th Cir. 1996) (quoting
O’Neal v. McAninch, 513 U.S. 432, 443 (1995); Brecht v. Abrahamson, 507 U.S. 619,
631 (1993). Here, the jury instructions made clear that the jurors retained the duty to
assess credibility and corroboration for themselves. The jurors were instructed that they
“alone must judge the credibility or believability of the witness” and they “may consider
anything that reasonably tends to prove or disprove the truth or accuracy of that
testimony.” (Lodgment 3 at 649–51.)3 The jurors were further instructed that they “may
3 The jurors were given the following instruction [No. 105 Witnesses]:
You alone must judge the credibility or believability of the witnesses. In deciding
whether testimony is true and accurate, use your common sense and experience. You
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
20 of 34

21
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
use the statement or testimony of an accomplice to convict the defendant” only if “[t]he
accomplice’s statement or testimony is supported by other evidence that you believe,”
and that they “should give that statement or testimony the weight [they] think it deserves
after examining it with care and caution and in the light of all the other evidence.” (Id. at
652–53.)4 Under these circumstances, the trial was not so infected with unfairness as to
violate due process. See Necochea, 986 F.2d at 1280–81, 1283 (explaining that vouching
errors were mitigated by the court’s instructions to the jury); United States v. Velasquez,
665 F. App’x 587, 589 (9th Cir. 2016) (finding that the prosecutor’s vouching “was
mitigated by a curative instruction, the weight of the evidence in the case, and the lack of
must judge the testimony of each witness by the same standards, setting aside any bias or
prejudice you may have. You may believe all, part, or none of any witness’s testimony.
Consider the testimony of each witness and decide how much of it you believe.
In evaluating a witness’s testimony, you may consider anything that reasonably tends to
prove or disprove the truth or accuracy of that testimony.
(Lodgment 3 at 649–51.)
4 The jurors were given the following instruction [No. 335 Accomplice Testimony]:
You may not convict the defendants of the charged crimes based on the testimony of an
accomplice alone. You may use the testimony of an accomplice to convict the defendant
only if:
1. The accomplice’s testimony is supported by other evidence that you
believe;
2. That supporting evidence is independent of the accomplice’s testimony;
AND
3. That supporting evidence tends to connect the defendant to the
commission of the crimes.
. . .
Any testimony of an accomplice that tends to incriminate the defendant should be viewed
with caution. You may not, however, arbitrarily disregard it. You should give that
testimony the weight you think it deserves after examining it with care and caution and in
the light of all the other evidence.
(Lodgment 3 at 652–53.)
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
21 of 34

22
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
personal opinion offered by the prosecutor”); see also United States v. Brooks, 508 F.3d
1205, 1211 (9th Cir. 2007) (holding that improper vouching was reduced by the jury
instructions directing jurors to scrutinize the credibility of witnesses who had pleaded
guilty).
For the reasons set forth above, the state appellate court’s decision was not
contrary to, or an unreasonable application of, clearly established Supreme Court
precedent. 28 U.S.C. § 2254(d)(1). Additionally, the state appellate court’s decision was
not based on an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2).
Accordingly, the Court RECOMMENDS that Petitioner’s claim that the prosecutor
engaged in improper vouching for the accomplice’s credibility be DENIED.
B. Habeas Relief is Not Warranted with Respect to Petitioner’s Claim that
there was Juror Misconduct
1. Parties’ arguments
Petitioner argues that he was denied a right to a fair and impartial jury, as
guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution as
a result of Juror No. 6’s misconduct due to the juror’s: (1) association with members of
the Arellano-Felix organization and her familiarity with its rival the Los Pallilos street
gang, (2) disclosure of this extrinsic evidence during juror deliberations, and (3)
statement when she began deliberations indicating a bias against Petitioner. (ECF No.
20-1 at 39.) Petitioner contends that the adjudication of the claim of juror misconduct
“resulted in a decision that was based on an unreasonable determination of the facts in
light of the evidence presented in the state court proceeding pursuant to 28 U.S.C.
§ 2254(d)(2).” (See id. at 41; see also ECF No. 31-1 at 9.)
Respondent argues that the state courts made a factual finding that is supported by
the record and, therefore, insulated from challenge. (ECF No. 29-1 at 11 (citing 28
U.S.C. § 2254(d)(2),(e)).) Respondent further asserts that Petitioner does not explain
how any misconduct occurring after the verdict could have affected the verdict, as the
trial court expressly found. (Id. at 12.) Respondent also contends that, as a legal matter,
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
22 of 34

23
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
the state courts reasonably denied relief. (Id.) Finally, Respondent maintains that the
relitigation bar imposes a significant hurdle, such that state-court decisions will generally
fall within the range of reasonableness. (Id.)
2. Relevant history at trial
Initially, Juror No. 6 was Alternate 4, and on December 10, 2014, the court seated
Alternate 4 as Juror No. 6. (Lodgment 4 at 853.) On December 16, 2014, the foreperson
(Juror No. 2), informed the court that the jury reached unanimous verdicts on counts five
and six (kidnapping and murder), but was deadlocked on counts one through four, and
believed that further deliberations would not help reach a unanimous decision. (Id. at
860–70.) The court recorded the verdicts on counts five and six, questioned the jurors
about whether further deliberations might assist, and then conferred with counsel in
chambers. (Id. at 870–71.) After returning to the courtroom, the court received a note
stating that the jurors had deliberated in open court, and Petitioner moved for a mistrial.
(Id.) The court directed the jury to resume deliberations while it considered the mistrial
motion with counsel. (Id. at 872.) The next day, the court declared a mistrial on counts
one through four. (Id. at 886.) After the court recorded its verdicts on counts five and six
and while ruling on the mistrial motion, the court received the following Note No. 49
from Juror No. 8 stating:
We as a jury came to a very hard decision yesterday. When juror #2,
the foremen (sic), after our collective judgment, I felt betrayed. I was very
upset yesterday, so much so that I question my own partiality. This is not
the only time court decorum has been broken. We have been given updates
of “Chipo” and other members of “Los Parlios.”(sic) After we returned to
the jury room, after yesterday’s decision, juror #4 stated the were (sic) a
baby sitter for the Areliano Felix (sic) family in TJ. Juror #4 qualified it by
saying that El Engeniero (Ajustador), and El Tigrillo were to (sic) old for the
juror to sit, so the juror never saw them. Juror #4 also stated that their
Macro Biology professor (sic) was the mother or aunt of the Areliano Felix
(sic) brothers. Juror #4 states that they put this in their “jury form” during
the selection process. I’m not saying juror #4 sympathizes with the AFO,
but knowing this about juror #4’s background makes me very uncomfortable
serving with this jury, to the point that it may impair my partiality.
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
23 of 34

24
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
I’m not trying to get out of this for personal reasons, and my job will
support me financialy (sic) for however long this trial takes. I just don’t
know if I can bepartial (sic) with such an unprofessional jury, or comfortable
with my judgment given that I am sitting on a jury with a person associated
with the AFO.
To be clear I have stated on my own jury from (sic) that I had two
cousins who were traffickers. Jose & Hugo Hernandez have served their
time & been deported, and I think their sentence was fair. I was a child
when I lived with them, since they stayed with my mother while I attended
elementary school in the 80’s/90’s. Juror #4 was a baby sitter for the
Areliano-Felix (sic) family as an adult, in their own words. (sic).
P.S. I have a nephrology appointment today at 3:50. I tried
rescheduling but the next one is in Feb. I have 20% kidney function. So I
should not miss any appointments.
(Id. at 886–87.)
After the jury was discharged and as he was leaving, Juror No. 8 submitted
another note indicating that he referenced Juror No. 4 by mistake and asked the court to
replace all references of Juror No. 4 with Juror No. 6. (Id. at 887–88.)
3. Analysis
Petitioner raised his juror misconduct claims in a state habeas petition. (See
Lodgment 60.) The California Court of Appeal ordered the trial court to conduct an
evidentiary hearing and to show cause regarding the alleged misconduct. (Lodgment 68.)
As a result, the trial court held an evidentiary hearing during which nine jurors testified.
(See Lodgments 78–79.) The trial court issued an order rejecting the petition, the
California Court of Appeal adopted the trial court’s reasoning, and the California
Supreme Court then denied relief. (See Lodgments 73, 75, 81.) Petitioner acknowledges
that the trial court applied the correct legal standard under clearly established Supreme
Court precedent pursuant to 28 U.S.C. § 2254(d)(1), but contends that the decision
nevertheless rested on an unreasonable determination of the facts within the meaning of
28 U.S.C. § 2254(d)(2). (ECF No. 20-1 at 44–46.) Specifically, Petitioner argues that
Juror No. 6 exhibited actual bias, and that the trial court reduced the evidentiary hearing
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
24 of 34

25
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
to a credibility contest between Jurors No. 6 and No. 8 while disregarding the testimony
of other jurors. (Id. at 40.)
Section 2254(d)(2) authorizes federal courts to grant habeas relief in cases where
the state-court decision “was based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). “The
‘unreasonable application’ clause requires the state court decision to be more than
incorrect or erroneous. The state court’s application of clearly established law must be
objectively unreasonable.” Lockyer, 538 U.S. at 75 (internal citations omitted); see also
Torres v. Prunty, 223 F.3d 1103, 1107–08 (9th Cir. 2000) (same standard of
unreasonableness applies under subsections (d)(1) and (d)(2)). “[A] determination of a
factual issue made by a State court shall be presumed to be correct,” and that this
presumption of correctness may be rebutted only by “clear and convincing evidence.” 28
U.S.C. § 2254(e)(1). Where there is no reasoned decision from the state’s highest court,
the Court “looks through” to the last reasoned state court decision and presumes it
provides the basis for the higher court’s denial of a claim or claims. See Ylst, 501 U.S. at
805–06.
Here, after an evidentiary hearing, the state trial court reasoned that Juror No. 6 did
not commit juror misconduct. (See Lodgment 73.) The California Court of Appeal
adopted the trial court’s reasoning that “Juror No. 6 had not committed prejudicial
misconduct and [Petitioner’s] counsel was not ineffective for failing to investigate the
alleged misconduct and move for a new trial on that ground.” (Lodgment 75 at 3.) The
California Court of Appeal concluded that the trial court’s findings were supported by the
record, and Petitioner made no persuasive argument for the appellate court to disagree
with the trial court. (Id.) In the Amended Petition, Petitioner advances the following
three arguments that Juror No. 6 was biased: (1) Juror No. 6 concealed a personal
relationship with the Arellano-Felix family; (2) Juror No. 6 claimed to possess, and
shared with other jurors, information about the Arellano-Felix Cartel and the Los Palillos
gang; and (3) Juror No. 6 demonstrated bias by expressing surprise that the jury had not
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
25 of 34

26
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
yet convicted Petitioner. (ECF No. 20-1 at 39–45.) Respondent contends that the state
courts’ fact findings are supported by the record and therefore undermine Petitioner’s
arguments. (ECF No. 29-1 at 11.) The Court addresses each of Petitioner’s arguments in
turn.
i. Juror No. 6 did not conceal her affiliation with the Arellano-Felix
Cartel
Petitioner argues that Juror No. 6’s concealment of her personal knowledge of the
Arellano-Felix Cartel prevented the defense from exercising either a peremptory
challenge or a challenge for cause to remove her during voir dire. (ECF No. 20-1 at 39.)
“The Sixth Amendment guarantees a criminal defendant a fair trial. One
touchstone of a fair trial is an impartial trier of fact—a jury capable and willing to decide
the case solely on the evidence before it.” Fields v. Brown, 503 F.3d 755, 766 (9th Cir.
2007) (internal quotation marks and citations omitted) (quoting McDonough Power
Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984)). As the Supreme Court recognized
in McDonough, “[v]oir dire examination serves to protect that right by exposing possible
biases, both known and unknown, on the part of potential jurors.” McDonough, 464 U.S.
at 554. Juror bias can be show in two ways: actual bias, which can occur when a juror
intentionally does not answer voir dire questions truthfully, and a truthful answer would
have led to a successful challenge for cause, or when a juror exhibits a “pre-set
disposition not to decide an issue impartially,” or implied bias, in which bias can be
presumed based on the circumstances. See Estrada v. Scribner, 512 F.3d 1227, 1240 (9th
Cir. 2008); Fields, 503 F.3d at 766. “Whether a juror is dishonest [or actually biased] is a
question of fact[.]” Fields, 503 F.3d at 767. A defendant’s right to a fair trial is violated
when a juror fails to honestly answer a question during voir dire and a correct response
would have led to a successful challenge of that juror for cause. McDonough, 464 U.S. at
556.
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
26 of 34

27
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Here, the trial court noted that before trial, all prospective jurors answered the
same written questions during voir dire. (Lodgment 73 at 4.) Specifically, Juror No. 6
gave the following responses to the relevant questions:
Question 76: Prior to this case have you ever heard of a group called Los
Palillos (the Toothpicks)?
Answer: No.
Question 84. What do you know if anything about Mexican drug cartels?
How do you know this information?
Answer: I know there is several groups I know because tv news.
Question 85. Have you heard of the Arellano-Felix drug cartel (AFO,
CAF)? If yes, what have you heard?
Answer: I have heard that some of them have been caught. When I was in
Preparatoria (High School) I had a teacher last name Arellano-Felix. I don’t
know if they are related.
(Id.)
At the evidentiary hearing, Juror No. 8 testified that Juror No. 6 stated on multiple
occasions that she knew people associated with the members of the Arellano-Felix Cartel.
(Lodgment 78 at 282.) Specifically, Juror No. 8 testified that Juror No. 6 had a
“macrobiology” teacher who was an aunt or close relative of the Arellano-Felix Cartel for
whom she sometimes babysat. (Id. at 288–89.) Juror No. 8 testified that these comments
were loud enough for the other jurors to hear and became a topic of conversation in the
deliberation room. (Id. at 288, 294–97.) Juror No. 8 explicitly asked Juror No. 6, in front
of the panel, if she put this information in her questionnaire, and she said that she had.
(Id. at 283–84, 306–07.)
Juror No. 6 testified that she remembered serving as a juror in Petitioner’s case and
that she completed the juror questionnaire under oath at the beginning of the trial. (Id. at
362–64.) She testified under the penalty of perjury that she answered all questions as
completely and truthfully as possible, and did not conceal any information, and explained
that she had written that she had a high school teacher named Arellano-Felix, but did not
know whether the teacher was related to the Arellano-Felix family. (Id. at 388–89.) She
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
27 of 34

28
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
further testified that she had not remained in contact with the teacher and later realized, in
preparing for the evidentiary hearing, that she had been mistaken. (Id. at 366–70.) Her
teacher’s name was Arellano-Garcia, a conclusion she confirmed by an internet search.
(Id. at 366–70, 393.) Juror No. 6 denied ever babysitting for the Arellano-Felix family or
telling any juror that she had done so and explained that she worked as a receptionist at a
music school where she watched children while her former teacher brought her daughter
to class. (Id. at 371–73.)
Juror No. 5 testified that she recalled Juror No. 6 commenting that she had a
teacher who might have been related to either the Arellano-Felix or Los Palillos cartel,
though she did not remember the exact relationship and thought it might have been an
aunt. (Id. at 434–35.) Juror No. 5 believed that Juror No. 6 described only a student-
teacher relationship with that teacher, and that Juror No. 6 had disclosed this information
on her questionnaire. (Id. at 436.)
Additionally, Jurors Nos. 1, 4, 9, 10, 11 all testified that they had never heard any
juror state that he or she had a teacher associated with, or that they had babysat for, the
Arellano-Felix Cartel. (Lodgment 73 at 14; see, e.g., Lodgment 78 at 479–81 (Juror No.
1 testifying that s/he did not remember Juror No. 6 saying she had a connection to the
Arellano-Felix Cartel); id. at 497–99 (Juror No. 4 testifying that s/he had no memory of
Juror No. 6’s connection to the Arrellano-Felix Cartel); id. at 466–69 (Juror No. 9
testifying that s/he had no memory of Juror No. 6’s connection to the Arellano-Felix
Cartel or that she brought in outside information); Lodgment 79 at 557–60 (Juror No. 10
testifying that s/he had no memory of Juror No. 6’s connection to the Arellano-Felix
Cartel); id. at 566–68 (Juror No. 11 testifying that s/he had no memory of Juror No. 6’s
connection to the Arellano-Felix Cartel).)
Although Petitioner argues that Juror No. 6 concealed information supporting a
challenge for cause, relying on Juror No. 8’s account and asserting that it was
corroborated by Juror No. 5, (ECF No. 20-1 at 40–41; ECF No. 31-1 at 9), the argument
lacks merit. The trial court made a factual finding, supported by the record, that Juror
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
28 of 34

29
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
No. 6 did not misrepresent or conceal material information, and this finding was adopted
by the California Court of Appeal. (Lodgment 73 at 17–19; Lodgment 75 at 3.) Juror
No. 8 was the only juror who claimed that Juror No. 6 portrayed herself as a babysitter
for a teacher tied to the Arellano-Felix Cartel, and the trial court identified three reasons
for discounting his testimony: he raised this allegation for the first time in his fifth note to
the court (Note No. 49), after being sent back to deliberate following the recording of two
verdicts; his evident frustration with being returned to deliberations suggested that his
bias toward other jurors affected his recollection; and, despite his assertion that Juror No.
6’s comments were loud enough for everyone to hear, no other juror recalled hearing
such statements. (Id. at 17–18.)
Petitioner’s reliance on Juror No. 5’s testimony does not render the state court’s
factfinding unreasonable. As the trial court observed and the appellate court adopted,
Juror No. 5 testified only that Juror No. 6 had a teacher who “may have been related to
either the Arellano-Felix or Los Palillos cartel,” which is consistent with Juror No. 6’s
written disclosure that she had “a teacher last name Arellano-Felix” and did not know
whether they were related. (Lodgment 73 at 4, 18; Lodgment 75 at 3.) Juror No. 5 further
testified that she believed this information had been disclosed on the questionnaire and
that she understood the relationship as a student-teacher relationship, not a personal or
familial tie that affected her neutrality. (Id. at 18; Lodgment 78 at 434–36.) Petitioner
identifies no additional evidence in his federal Petition showing that Juror No. 5
corroborated Juror No. 8’s claim that Juror No. 6 babysat for a cartel-connected teacher.
(See Lodgment 78 at 436 (Juror No. 5 testifying that Juror No. 6 described only a
student-teacher relationship and no other connection).)
Contrary to Petitioner’s argument, the record does not show that Juror No. 6
concealed a babysitting relationship with the Arellano-Felix Cartel. Juror No. 6 testified
that she worked as a receptionist at a music school for young children, where her
teacher’s daughter may have attended, and did not personally babysit for the family. (Id.
at 371.) She further testified that, prior to the evidentiary hearing, she learned that her
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
29 of 34

30
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
teacher’s name was Arellano-Garcia, not Arellano-Felix. (Id. at 366–70.) On this record,
the Court finds that Juror No. 6 did not conceal personal knowledge of, or association
with, the Arellano-Felix Cartel beyond what she disclosed on her questionnaire.
Therefore, Petitioner has not shown by clear and convincing evidence that Juror
No. 6 concealed information on her questionnaire, as required by 28 U.S.C. § 2254(e)(1).
Accordingly, the Court concludes that the state appellate court’s denial of this claim was
not based on an unreasonable determination of the facts under 28 U.S.C. § 2254(d)(2).
See Johnson v. Diaz, Case No. 18-CV-1542 JLS (LL), 2020 WL 2218954, at *11 (S.D.
Cal. May 7, 2020) (holding that a state court’s post-evidentiary-hearing findings were not
based on an unreasonable determination of the facts, where a juror failed to disclose her
experience as a rape victim). Additionally, the state appellate court’s decision was
neither contrary to, nor an unreasonable application of, clearly established Supreme Court
law. 28 U.S.C. § 2254(d)(1). Accordingly, the Court RECOMMENDS that
Petitioner’s claim that Juror No. 6 concealed her affiliation with the Arellano-Felix Cartel
be DENIED.
ii. Juror No. 6 did not present extraneous information to other
jurors
Petitioner further argues that Juror No. 6 was biased because she provided updates
during deliberations5 on the Los Palillos Cartel and reported that one of its prominent
members, Chipo, remained at large. (ECF No. 20-1 at 42.)
5 Federal Rule of Evidence 606(b) states: “During an inquiry into the validity of a verdict . . . [a] juror
may not testify about any statement made or incident that occurred during the jury’s deliberations; the
effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the
verdict or indictment. The Court may not receive a juror’s affidavit or evidence of a juror’s statement
on these matters.” Fed. R. Evid. 606(b). The Ninth Circuit applies Rule 606(b) to juror declarations in
federal habeas proceedings and has instructed that courts may consider only evidence properly
admissible under the rule when evaluating allegations of juror misconduct. See, e.g., Fields v. Brown,
503 F.3d 755, 778 (9th Cir. 2007); United States v. Bagnariol, 665 F.2d 877, 884–85 (9th Cir. 1981).
“Jurors may testify regarding extraneous prejudicial information or improper outside influences,” but
not about the deliberative process or the subjective effect of such information. Bagnariol, 665 F.2d at
884–85. Here, Federal Rule of Evidence 606(b) does not bar Juror No. 8’s testimony that Juror No. 6
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
30 of 34

31
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
The Sixth Amendment guarantee of a trial by jury requires the jury verdict to be
based on the evidence presented at trial. See Turner v. Louisiana, 379 U.S. 466, 472–73,
(1965); Grotemeyer v. Hickman, 393 F.3d 871, 876 (9th Cir. 2004). Evidence not
presented at trial is deemed “extrinsic.” See Marino v. Vasquez, 812 F.2d 499, 504 (9th
Cir. 1987). Jury exposure to extrinsic evidence deprives a defendant of the rights to
confrontation, cross-examination, and assistance of counsel embodied in the Sixth
Amendment. See Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995).
Similar to his first juror-bias theory, Petitioner relies primarily on Juror No. 8’s
testimony that Juror No. 6 reported that members of the Los Palillos gang were “free and
walking about doing things.” (Lodgment 78 at 288, 292, 302–03.) However, the trial
court, whose findings were adopted by the appellate court, found that no juror other than
Juror No. 8, recalled any juror bringing outside information into deliberations, and
concluded that the defense had not shown that Juror No. 6 obtained cartel-related
information from extrinsic sources during trial or introduced such information into the
jury room. (Lodgment 73 at 21–22; Lodgment 75 at 3.) In his Amended Petition,
Petitioner himself acknowledges that “the trial court did not err in finding that this claim
in Juror Juror (sic) number 8’s note was uncorroborated and not sustained and did not
indicate bias by Juror number 6.” (ECF No. 20-1 at 43.) Thus, Petitioner both concedes
the lack of corroboration and fails to demonstrate that any alleged statements occurred
during deliberations on the counts of conviction. See Thompson v. Borg, 74 F.3d 1571,
provided updates about the Los Palillos Cartel during deliberations, because this alleged conduct
constitutes possible “extraneous prejudicial information” within the exception set out in Rule 606(b)(2).
See Fed. R. Evid. 606(b)(2).
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
31 of 34

32
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
1574 (9th Cir. 1996) (“Juror misconduct typically occurs when a member of the jury has
introduced into its deliberations matter which was not in evidence or in the
instructions.”). Even assuming Juror No. 8’s accounts were corroborated, he testified that
Juror No. 6 made the comments the day before, or the day he wrote Note No. 49, after the
jury had already reached verdicts on the two counts of conviction. (Lodgment 78 at 292.)
Accordingly, any alleged exposure to Juror No. 6’s statements could not have had a
“substantial and injurious effect or influence in determining the jury’s verdict.” See
Sassounian v. Roe, 230 F.3d 1097, 1108 (9th Cir. 2000) (quoting Brecht, 507 U.S. at
623).
For these reasons, the Court finds that Juror No. 6 did not present extraneous
information to the jury. See Young v. Gipson, 163 F. Supp. 3d 647, 735 (N.D. Cal. 2015)
(denying habeas relief where petitioner failed to show that extraneous information
affected jurors’ verdict). The Court therefore concludes that the state appellate court’s
finding was not based on an unreasonable determination of the facts pursuant to 28
U.S.C. § 2254(d)(2). Additionally, the state appellate court’s decision was neither
contrary to, nor an unreasonable application of, clearly established Supreme Court law.
28 U.S.C. § 2254(d)(1). Accordingly, the Court RECOMMENDS that Petitioner’s
claim that Juror No. 6 presented extraneous information to other jurors be DENIED.
iii. Juror No. 6’s statement, “you haven’t found him guilty yet?” did
not demonstrate actual bias against Petitioner during jury
deliberations
Finally, Petitioner argues that Juror No. 6 demonstrated actual bias when, upon
being seated as an alternate, she allegedly asked during deliberations, “You haven’t found
him guilty yet?” (ECF No. 20-1 at 40.) Juror No. 2, the foreperson, was the only juror
who testified that he heard Juror No. 6 make this remark and that, as a result, the jury
restarted deliberations. (Lodgment 78 at 513.)
Actual bias is defined as “‘bias in fact’—the existence of a state of mind that leads
to an inference that the person will not act with entire impartiality.” United States v.
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
32 of 34

33
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Gonzalez, 214 F.3d 1109, 1112 (9th Cir. 2000) (quoting United States v. Torres, 128 F.3d
38, 43 (2d Cir. 1997)). Actual bias is typically found when a prospective juror states that
he can not be impartial, or expresses a view adverse to one party’s position and responds
equivocally as to whether he could be fair and impartial despite that view. The
determination of whether a juror is actually biased is a question of fact that habeas courts
review for “manifest error” or abuse of discretion. Fields, 503 F.3d at 767.
In this case, Juror No. 2, the foreperson, was the only juror who testified that he
heard Juror No. 6 make the remark “he hasn’t been found guilty yet?” and that, as a
result, the jury restarted deliberations. (Lodgment 78 at 513.) The trial court, whose
findings were adopted by the appellate court, found that Juror No. 6’s alleged statement
did not establish bias against Petitioner, reasoning that Juror No. 6 had listened to more
than a month and a half of testimony, formed an opinion based on the evidence rather
than prejudice, and there was no evidence that she harbored bias or was not open and
thoughtful during deliberations. (Lodgment 73 at 19–20.) This Court agrees. Petitioner
relies in part on a portion of Juror No. 2’s testimony—that Juror No. 6 “had her mind
made up prior to sitting down with the other jurors and deliberating”—which was
stricken under Cal. Evid. Code § 11506, and thus cannot support a finding of bias. (ECF
No. 20-1 at 41; see also Lodgment 78 at 514–16.)
6 Cal. Evid. Code § 1150(a) states the following:
Upon an inquiry as to the validity of a verdict, any otherwise admissible evidence may be
received as to statements made, or conduct, conditions, or events occurring, either within
or without the jury room, of such a character as is likely to have influenced the verdict
improperly. No evidence is admissible to show the effect of such statement, conduct,
condition, or event upon a juror either in influencing him to assent to or dissent from the
verdict or concerning the mental processes by which it was determined.
Id. This provision mirrors Federal Rule of Evidence 606(b). Accordingly, the trial court
properly sustained the objection, and this Court cannot consider Juror No. 2’s stricken statement.
See Fields, 503 F.3d at 778 (“Juror testimony about consideration of extrinsic evidence may be
considered by a reviewing court, but juror testimony about the subjective effect of evidence on
the particular juror or about the deliberative process may not.”).
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
33 of 34

34
19cv544-BAS(LR)
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Petitioner has not shown, by clear and convincing evidence, that the state appellate
court’s rejection of this claim rested on an unreasonable determination of the facts under
28 U.S.C. § 2254(d)(2), (e)(1). Additionally, the state appellate court’s decision was
neither contrary to, nor an unreasonable application of, clearly established Supreme Court
law. 28 U.S.C. § 2254(d)(1). Accordingly, the Court RECOMMENDS that Petitioner’s
claim that Juror No. 6’s statement “you haven’t found him guilty yet?” demonstrated
actual bias against Petitioner during jury deliberations be DENIED.
V. CONCLUSION AND RECOMMENDATION
For the foregoing reasons, IT IS HEREBY RECOMMENDED that the District
Judge issue an order: (1) approving and adopting this Report and Recommendation, and
(2) directing that Judgment be entered DENYING the Amended Petition.
IT IS ORDERED that no later than February 9, 2026, any party to this action
may file written objections with the Court and serve a copy on all parties. The document
should be captioned “Objections to Report and Recommendation.”
IT IS FURTHER ORDERED that any reply to the objections shall be filed with
the Court and served on all parties no later than February 17, 2026. The parties are
advised that failure to file objections within the specified time may waive the right to
raise those objections on appeal of the Court’s order. See Turner v. Duncan, 158 F.3d
449, 455 (9th Cir. 1998).
IT IS SO ORDERED.
Dated: February 2, 2026
Case 3:19-cv-00544-BAS-LR Document 34 Filed 02/02/26 PageID.<pageID> Page
34 of 34