United States District Court, D. Nevada
R. HICKS UNITED STATES DISTRICT JUDGE.
habeas matter under 28 U.S.C. § 2254 comes before the
Court for a decision on the merits of the remaining grounds.
Gerald Von Tobel challenges his 2005 Nevada state conviction,
pursuant to a jury verdict, of eleven counts of lewdness with
a child under the age of fourteen, four counts of sexual
assault with a minor under the age of fourteen, one count of
open or gross lewdness, two counts of attempted lewdness with
a child under the age of fourteen, one count of lewdness with
a child under the age of fourteen with the use of a deadly
weapon, three counts of child abuse and neglect, and three
counts of second-degree kidnapping. He challenged the
judgment of conviction, as amended, on direct appeal and two
rounds of state post-conviction review.
Antiterrorism and Effective Death Penalty Act (AEDPA) imposes
a “highly deferential” standard for review of
state-court rulings on the merits that is “difficult to
meet” and “which demands that state-court
decisions be given the benefit of the doubt.”
Cullen v. Pinholster, 563 U.S. 170 (2011). Under
this highly deferential standard of review, a federal court
may not grant habeas relief merely because it might conclude
that the state court decision was incorrect. 563 U.S. at 202.
Instead, under 28 U.S.C. § 2254(d), the court may grant
relief only if the state court decision: (1) was either
contrary to or involved an unreasonable application of
clearly established law as determined by the United States
Supreme Court; or (2) was based on an unreasonable
determination of the facts in light of the evidence presented
at the state court proceeding. 563 U.S. at 181-88.
court decision is “contrary to” law clearly
established by the Supreme Court only if it applies a rule
that contradicts the governing law set forth in Supreme Court
case law or if the decision confronts a set of facts that are
materially indistinguishable from a Supreme Court decision
and nevertheless arrives at a different result.
E.g., Mitchell v. Esparza, 540 U.S. 12,
15-16 (2003). A state court decision is not contrary to
established federal law merely because it does not cite the
Supreme Court's opinions. Id. Indeed, the
Supreme Court has held that a state court need not even be
aware of its precedents, so long as neither the reasoning nor
the result of its decision contradicts them. Id.
Moreover, “[a] federal court may not overrule a state
court for simply holding a view different from its own, when
the precedent from [the Supreme] Court is, at best,
ambiguous.” 540 U.S. at 16. For, at bottom, a decision
that does not conflict with the reasoning or holdings of
Supreme Court precedent is not contrary to clearly
established federal law.
court decision constitutes an “unreasonable
application” of clearly established federal law only if
it is demonstrated that the state court's application of
Supreme Court precedent to the facts of the case was not only
incorrect but “objectively unreasonable.”
E.g., Mitchell, 540 U.S. at 18; Davis v.
Woodford, 384 F.3d 628, 638 (9th Cir. 2004).
extent that the state court's factual findings are
challenged, the “unreasonable determination of
fact” clause of Section 2254(d)(2) controls on federal
habeas review. E.g., Lambert v. Blodgett,
393 F.3d 943, 972 (9th Cir. 2004). This clause
requires that the federal courts “must be particularly
deferential” to state court factual determinations.
Id. The governing standard is not satisfied by a
showing merely that the state court finding was
“clearly erroneous.” 393 F.3d at 973.
AEDPA requires substantially more deference:
. . . . [I]n concluding that a state-court finding is
unsupported by substantial evidence in the state-court
record, it is not enough that we would reverse in similar
circumstances if this were an appeal from a district court
decision. Rather, we must be convinced that an appellate
panel, applying the normal standards of appellate review,
could not reasonably conclude that the finding is supported
by the record.
Taylor v. Maddox, 366 F.3d 992, 1000 (9th
Cir. 2004); see also Lambert, 393 F.3d at 972.
28 U.S.C. § 2254(e)(1), state court factual findings are
presumed to be correct unless rebutted by clear and
petitioner bears the burden of proving by a preponderance of
the evidence that he is entitled to habeas relief.
Pinholster, 563 U.S. at 569.
1: Juror Misconduct
Ground 1, Von Tobel alleges that he was denied rights to
confrontation and to trial by an impartial jury in violation
of the Sixth and Fourteenth Amendments when a juror engaged
in a conversation with a neighbor who was a police officer,
who opined that a defendant “wouldn't be here [at
trial] if he didn't do something, ” allegedly
negating petitioner's right to the presumption of
jury began its deliberations from prior to 4:00 p.m. to
approximately 6:00 p.m. on Thursday, March 17, 2005, before
returning at 10:00 a.m. the next day.
the day on that Friday, the jury sent a note asking:
“If we don't agree on all counts can we convict
only on what we agree.” The court responded that the
answer to the question was contained within the instructions.
Prior to 4:45 p.m., the jury sent another note reflecting
that they could not agree on nineteen specified counts, that
they did agree on seven other specified counts, and that
there were two jurors for whom no further amount of
deliberation would change their vote. The jurors asked how
they were to proceed and, if the answer was in the
instructions, on what page. The court again referred
generally to the instructions and discharged the jury until
Monday morning to resume deliberations.
the day on Monday, March 21, 2005, the jury sent a longer
note reflecting that the jurors were “going nowhere,
” that they agreed on sixteen unspecified counts, that
they could not agree on the others, and that the jurors did
not “feel we can come together unanimously on all
counts.” The note stated that the jurors understood the
rules on a unanimous verdict, but they sought an explanation
as to a “hung jury” if that was an option. The
court requested that the jury continue to deliberate, stating
that if they had not reached a verdict by the end of the day,
they would be called back at 9:00 a.m. the next morning for
approximately 9:00 a.m. on the Tuesday morning, the jury
returned a verdict, finding Von Tobel guilty on twenty-five
counts and not guilty on one count.
releasing the jury, the trial judge encouraged the jurors to
voluntarily “stay and chat” with counsel as to
“why or how you reached your
counsel's declaration submitted with a motion for new
trial filed the next day asserted, inter alia, the
following regarding what transpired thereafter:
That after the reading of the verdict your declarant remained
in the courtroom to speak with the jurors, along with
co-counsel, Amy Coffee, and Deputy District Attorney Mary Kay
Holthus. That during this informal discussion with the
jurors, Juror No. 200, Jimmie Petersen, was asked what
factors in the case had an impact on his verdict. Petersen
then remarked, “It's like my neighbor, who is a
cop, always says, ‘He wouldn't be here if he
didn't do something.'”
(ECF No. 25-18, at 3; Exhibit 38, at 2, ¶ 7.)
state district court held an evidentiary hearing on April 12,
2005. Jimmie Petersen testified, inter alia, that
his neighbor “Joe” previously had told him that
he was “an undercover cop” with the Boulder City,
Nevada police department. During examination by the court,
Petersen testified to the following exchange with the
neighbor occurring during the trial:
Q Was there any time during the voir dire, or the course of
this case when in fact you had a conversation with this next
door neighbor of yours wherein you discussed this case?
A I did not discuss the case with him.
Q What, if any conversation did you have about this case with
your next door neighbor?
A I went out to the community mailbox and I happened to meet
him out there one day, and - Q During the trial?
A During the trial; and I said: You know, I don't know
how you put up with this stuff that you have to do with.
A I said - he said: Oh. It's just want [sic] you have to
do. And I said - I just mentioned that I was on jury duty and
I was having a tough time. I says: I've got stuff
that's going on here that just makes me sick. Matter of
fact, I have a hard time sleepin' with it as a result of
And essentially that was pretty much the conversation. I did
not disclose anything at all about the case, what it was,
what it was about. He made the comment - I don't know
whether it was then or at a later time that he says: Well, a
lot of cases never get that far. They get plead out before it
ever happens; and he says, for example, he says: We have one
in Boulder City that there's - it was a kid got killed in
gang something or other, I don't recall the whole - all
of the things about it; and he says: There's already
people that have plead out serving time while the others are
waiting to go to Court. And that was pretty much the
Q Did he make a comment to you about if someone appears in a
court of law that they must have done something?
A Not really.
Q You don't deny in fact though that you made a statement
sort of like that when we were here after the return of the
A No, I don't deny that.
(ECF No. 26-5, at 16-18; Exhibit 45, at 15-17.)
further testified in response to the court's examination
that: (1) the conversation did not affect in any way his
understanding of the presumption of innocence; (2) the
conversation did not affect his ability to keep an open mind
about the case as he listened to the evidence; (3) he did not
decide after talking to the officer that Von Tobel must have
done something or else he would not be in court; (4) the
officer was “just a neighbor” with whom he did
not otherwise socialize; (5) he did not withhold any
information during voir dire regarding his understanding of
the presumption of innocence; (6) he did not make up his mind
as to guilt or innocence prior to deliberations; and (7) he
actually changed his mind several times during
the end of an extensive examination of the juror by defense
counsel, the following exchange occurred:
Q Okay. Sir, at that point when you were speaking with the
police officer, the police officer talked to you about a case
that he was involved in in Boulder City, correct?
Q He told you that he had a case where a kid had been killed?
Q Okay, and it was at that point that the police officer
offered his opinion that if someone is there - meaning if
someone is on trial - that they are there for a reason?
A I don't know if it was his opinion. I'd say it was
more of statement.
Q Okay, and he told you that statement at that point?
A I believe so, yes.
Q During the trial?
A I believe it -
(ECF No. 26-5, at 29-30; Exhibit 45, at 28-29.)
further testified in response to counsel's examination
that: (1) he respected the work that his neighbor did as a
police officer; (2) he “took [the statement] to mean
that was his opinion;” (3) the statement meant
“[n]ot a thing” to him; (4) the statement did not
affect him one way or the other in the case; (5) it did not
influence his thought process, how he viewed the evidence, or
counsel further elicited the following testimony from
Petersen about his post-verdict comment, after establishing
that multiple trial participants including counsel and the
judge were present:
Q . . . and one of the comments that you made during that
discussion right after the verdict was that it reminded you
of what [your] neighbor had said?
A Yes, I did.
Q You said that the verdict reminded you that the police
officer had felt if someone is on trial, they're there
for a reason?
A I believe so.
Q And that was immediately after the verdict?
A I believe so.
(ECF No. 26-5, at 31-32; Exhibit 45, at 30-31.)
conclusion of the evidentiary hearing, the trial judge
initially noted that she was present when the juror made the
comment following the verdict to the effect that the officer
had said “[i]f they're here, they're here for a
reason.” She stated that “I heard, I saw, and I
was present for all of that which gives rise to the matter
before me now.”
judge noted that the juror perhaps had violated her standard
admonition to jurors to not discuss the case when he said to
the officer that he did not know how they did what they did.
She further concluded as follows:
I find, however, that the true violation of this order
occurred when he either in response, or in the typical
neighborhood banter, said: I'm involved in a case that
because of what I'm hearing, it's making me sick.
That's discussing a subject that is related to or
connected to the trial. That's all that he discussed.
Then my analysis needs to be whether or not as a result of
that impermissible discussion, was he influenced by the
discussion? Was he subsequently unable to maintain the oath
that he had taken to keep an open mind, to be fair to both
sides in this case? I found from his testimony that he never
swayed in his belief that he was obligated to listen to the
facts and the evidence in this case, and render a verdict
only after he listened to all of the witnesses, saw all of
the evidence, and began deliberations with his fellow jurors.
He never wavered with respect to the presumption of
innocence. He did not have a preconceived idea about the
guilt or innocence of this case. His discussion with the
neighbor did not affect his belief or reliance upon the
presumption of innocence, and although I stopped short, or
tried to stop short in my questioning as to whether or not he
had made up his mind about the guilt or innocence of this
defendant before he began deliberations, he responded that he
had not, and then he gave me more information than I think we
were entitled to when he said: Well, actually I changed my
mind several times during the deliberative process.
So while I find that this juror went - had a conversation
with a neighbor that discussed his apparent physical reaction
to a case that he was a juror on, I find no evidence that the
nature of the case was discussed; that the conversation
itself had any influence on the determination of guilt or
innocence in this case; that the respect for the presumption
of innocence remained un-violated - inviolate I believe is
the correct word for that - until such time as this juror
deliberated with the other jurors, weighed and balanced
presumably the evidence, applied the law as given in the
instructions, and that there is no error that would require
the granting of the motion for a new trial; and that will be
this Court's order.
(ECF No. 26-5, at 43-44; Exhibit 45, at 42-43.)
The Supreme Court of Nevada held as follows in its February
29, 2008, order of affirmance:
Von Tobel argues that the district court should have granted
his motion for a mistrial on the ground that a juror engaged
in a conversation concerning the case with his neighbor, an
off-duty police officer. This court generally reviews a
district court's denial of a motion for a mistrial
because of juror misconduct for an abuse of discretion.[FN1]
When the allegation of juror misconduct involves exposure to
extrinsic evidence or influence in violation of the
Confrontation Clause, we review de novo the district
court's determination regarding the prejudicial effect of
the misconduct.[FN2] We will not disturb the district
court's factual findings absent clear error.[FN3]
[FN1] Lane v. State, 110 Nev. 1156, 1163, 881 P.2d
1358, 1363-64 (1994), vacated on other grounds on
rehearing, 114 ...