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Brian Lee Parker v. Larry Small

December 27, 2011

BRIAN LEE PARKER, PETITIONER-APPELLANT,
v.
LARRY SMALL, WARDEN; EDMUND G. BROWN, JR., ATTORNEY GENERAL OF THE STATE OF CALIFORNIA, RESPONDENTS-APPELLEES.



Appeal from the United States District Court for the Northern District of California William H. Alsup, District Judge, Presiding D.C. No. 3:09-cv-03989-WHA (PR)

Per curiam.

FOR PUBLICATION

OPINION

Argued and Submitted October 11, 2011-San Francisco, California

Before: J. Clifford Wallace and Sidney R. Thomas, Circuit Judges, and William H. Albritton, III, Senior District Judge.*fn1

Per Curiam Opinion; Concurrence by Judge Thomas

OPINION

The right of an accused to have his case heard before a jury of his peers is a hallmark of our criminal justice system. The jury's verdict is of paramount importance in concluding the accused's case. Accordingly, the Supreme Court has permitted trial judges to give extra instructions to deadlocked juries in the hope of encouraging, but not coercing, a jury verdict. See Allen v. United States, 164 U.S. 492, 17 S. Ct. 154, 41 L. Ed. 528 (1896); Lowenfield v. Phelps, 484 U.S. 231, 108 S. Ct. 546, 98 L. Ed. 2d 568 (1988); Early v. Packer, 537 U.S. 3, 123 S. Ct. 362, 154 L. Ed. 2d 263 (2002) (per curiam). This case reaches us on a Certificate of Appealability granted by the United States District Court for the Northern District of California on the issue of whether the California Court of Appeal acted contrary to clearly established federal law as determined by the Supreme Court of the United States when it held that the supplemental jury charge given at petitioner's trial was not coercive.

The petitioner, Brian Lee Parker, was convicted in the Superior Court of San Mateo County, California, of murder and other aggravating enhancements. Parker received a sentence of life without parole for the murder conviction and a sentence of 37 years to run consecutive to the life sentence for the enhancements. Parker appealed his conviction to the California Court of Appeal on the ground that the trial judge's supplemental instructions to the deadlocked jury were coercive. The Court of Appeal rejected this argument and affirmed the trial judge, and the California Supreme Court denied review. Parker then filed a habeas petition in the United States

] District Court for the Northern District of California pursuant to 28 U.S.C. § 2254.

The district court denied the writ of habeas corpus. It did, however, grant a certificate of appealability on Parker's claim that the trial judge's supplemental jury charge was coercive. We agree with the district court, and we affirm the denial of the writ of habeas corpus.

This decision requires us to reiterate this Court's role under the Antiterrorism and Effective Death Penalty Act ("AEDPA") habeas framework, 28 U.S.C. § 2254(d). We sit here not as a supervisor of state courts, but as enforcer of the federal AEDPA's reasonableness standard. Accordingly, we hold, not that we approve of the instruction given by the California trial court, or even necessarily that we would have made the same decision as the California Court of Appeal, if sitting in its place, but that the California Court of Appeal's decision meets the federal review standard set forth by the AEDPA.

BACKGROUND

At the close of Parker's six weeks trial, the jury was instructed on the law and on its role, and began deliberating. The following rendition of the jury's deliberation is drawn from the California Court of Appeal's decision:

On the third day of deliberations, the jury sent a note to the court stating, "We can't come to a decision." The court inquired as to whether the jury had agreed to any of the counts, to which the jury responded, "no." The court returned a note to the jury which read, "Given the complexity and length of this trial-I believe that you should continue your deliberations to see if progress can be made in reaching a decision." Later that day, the jury sent the court another note, which read, "Regretfully, we all agree that we

] will not be able to come to a unanimous decision." The court responded, "It does not appear that you have had time to fully and frankly consider the evidence with open minds and fully and frankly interact with each other to try and reach verdicts. [¶ ] This is the process in which you are required by law to engage. If there is something further that the court can do to assist you, please advise me. Otherwise, please continue your deliberations." Still later the same day, the jury requested and received further instructions on the definition of "reasonable doubt." Then the jury sent another note to the court indicating that it was still deadlocked. The court recessed for the evening and asked the jury to reflect on the case that evening and to return the following morning. The jury resumed deliberations the following day, but again sent the court a note indicating that it remained deadlocked. The note explained, "We have one juror who says that because he believes all the prosecution witnesses lied, he cannot find the defendant guilty-ever. He is unwilling to examine other evidence. He is wed to the statement the prosecuting attorney made in closing, 'If you believe the prosecution witnesses, you must find the defendant guilty.' He is unable, even though we have asked many times, to explain to us how the evidence leads to a not guilty verdict. We are deadlocked."

In response to this note, the court instructed the jury verbatim from an instruction upheld in People v. Moore (2002) 96 Cal.App.4th 1105, 1121:

"'What I am going to do right now, ladies and gentlemen, is I have further instructions and directions to give you. It has been my experience on more than one occasion that a jury which initially reported it was unable to reach a verdict was ultimately able to arrive at verdicts on one or more of the counts before

] it. To assist you in your further deliberations, I'm going to further instruct you as follows:

'Your goal as jurors should be to reach a fair and impartial verdict if you are able to do so based solely on the evidence presented and without regard for the consequences of your ...


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