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Tobel v. Benedetti

United States District Court, D. Nevada

May 1, 2018

GERALD VON TOBEL, Petitioner,
v.
JAMES BENEDETTI, et al., Respondents.

          ORDER

          LARRY R. HICKS UNITED STATES DISTRICT JUDGE.

         This habeas matter under 28 U.S.C. § 2254 comes before the Court for a decision on the merits of the remaining grounds.

         Background

         Petitioner 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.

         Standard of Review

         The 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.

         A state 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.

         A state 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).

         To the 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.

         Rather, 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.

         Under 28 U.S.C. § 2254(e)(1), state court factual findings are presumed to be correct unless rebutted by clear and convincing evidence.

         The 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.

         Discussion

         Ground 1: Juror Misconduct

         In 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 innocence.[1]

         The 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.[2]

         During 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.[3]

         During 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 continued deliberation.[4]

         At 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.[5]

         Before releasing the jury, the trial judge encouraged the jurors to voluntarily “stay and chat” with counsel as to “why or how you reached your decision.”[6]

         Defense 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.)

         The 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.[7] 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.
Q Okay.
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 it.
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 conversation.
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 verdict?
A No, I don't deny that.

(ECF No. 26-5, at 16-18; Exhibit 45, at 15-17.)

         Petersen 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 deliberations.[8]

         Toward 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?
A Yes.
Q He told you that he had a case where a kid had been killed?
A Yes.
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.)

         Petersen 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 his verdict.[9]

         Defense 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.)[10]

         At the 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.”[11]

         The 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:
Juror misconduct
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 ...

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