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Gonzalez v. Holbrook

United States District Court, E.D. Washington

November 17, 2014

DON HOLBROOK, Respondent

Armondo Hernandez Gonzalez, Petitioner, Pro se, WALLA WALLA, WA.

For Don Holbrook, Respondent: Mandy Lynn Rose, LEAD ATTORNEY, Attorney General of Washington - Ecology Division, Olympia, WA.



BEFORE THE COURT is a Petition under 28 U.S.C. § 2254 for Writ of Habeas Corpus by a person in state custody. ECF No. 6. Respondent answered. ECF No. 9. Petitioner (Gonzalez) appears pro se and Respondent is represented by Assistant Attorney General Mandy L. Rose. This matter was heard without oral argument. After review it is recommended that the Petition for Writ of Habeas Corpus be denied.

When he filed his petition Gonzalez was in custody at the Washington State Penitentiary (WSP) in Walla Walla, Washington, pursuant to 2010 Yakima County convictions for second degree murder, first degree assault and second degree unlawful possession of a firearm. Gonzalez, represented by counsel, was sentenced to a total of 518 months. ECF No. 10, Exhibit N. 1. His petition raises a single habeas claim. ECF No. 6 at ¶ 12. Respondent concedes Gonzalez " arguably exhausted his claim within the meaning of 28 U.S.C. § 2254(b)." ECF No. 9 at page 6. Because respondent does not advance further argument and it appears the claim was properly exhausted, the Court treats the claim as exhausted.


A. Factual History

The Washington Court of Appeals, Division Three, summarized the relevant facts:

" The facts in this case are not disputed. On November 10, 2008, Mr. Gonzalez shot and killed rival gang member Eric Vargas. He also shot and wounded Antonio Carrasco. The State charged Mr. Gonzalez with second degree murder, first degree assault, and second degree unlawful possession of a firearm. The case proceeded to trial.

In the middle of trial, one of the jurors indicated he might have an issue serving on the jury:

THE COURT: . . . I'm advised by the bailiff that you have expressed some concern about retaliation, is that right?

JUROR NUMBER 4: Well, just concerned for, you know, why my name is said out loud and, you know.

THE COURT: Well, let me --

JUROR NUMBER 4: Safety issues--


JUROR NUMBER 4: -- that kind of thing.

THE COURT: Let me just talk to you a little bit here.


THE COURT: Your name was said out loud because I address members of the jury that way, instead of juror number whenever I can.

No one has your address; no one has your telephone number. . . . So the only thing that's a matter of public record is your name.

This is a public proceeding; criminal trials are public proceedings. Anybody can come in and listen.

Another concern I'm advised is that you were concerned about who's in the gallery. The gallery consists primarily of members of the Vargas family, the deceased boy.


THE COURT: I'm advised that no one else has been here. . . . Does that help in any way with respect to your concerns?

JUROR NUMBER 4: To be honest, no.

THE COURT: Okay. You want--

JUROR NUMBER 4: What bothers me is--is, you know, not much-not necessarily what's happening here, but it could be anywhere. You know what I'm saying? I thought it was gonna be more anonymous than--

THE COURT: There's nothing--

JUROR NUMBER 4:-- it is.

THE COURT: --anonymous about a criminal trial.

JUROR NUMBER 4: Well Report of Proceedings (RP) at 596-98.

The judge additionally informed the juror that in his many decades of legal practice, he had never heard of a single instance of jury retaliation. The judge then told the juror, " I'm not going to excuse you . . . you took an oath when you stood up and raised your right hand. I expect you to abide by that oath. . . . Okay?" RP at 599. The juror responded, " Okay." RP at 599.

Defense counsel asked the court to dismiss the juror, pointing out that the juror's fear for his personal safety " may affect the neutrality of his judgment." RP at 599-600. The court retained the juror. . . .


Impartial Juror .

Mr. Gonzalez first contends that he was denied his constitutional right to a fair and impartial jury as a result of the trial court's failure to excuse juror 4. He contends the juror's fear of retaliation potentially affected his ability to remain impartial and that the court should have questioned the juror in more detail about his concerns.

Under the Sixth Amendment to the United States Constitution and article I, section 22 of the Washington Constitution, a defendant is guaranteed the right to a fair and impartial jury. State v. Latham, 100 Wn.2d 59, 62-63, 667 P.2d 56 (1983). The right to an impartial jury is also protected by RCW 2.36.110 and CrR 6.5, which place the trial court under a continuous obligation to excuse any juror who is unfit and unable to perform the duties of a juror. State v. Jorden, 103 Wn.App. 221, 226-27, 11 P.3d 866 (2000). RCW 2.36.110 specifically mandates that a judge excuse any juror who is unfit due to " bias, prejudice, indifference, inattention or any physical or mental defect or by reason of conduct or practices incompatible with proper and efficient jury service." CrR 6.5 states, in part, " [i]f at any time before submission of the case to the jury a juror is found unable to perform the duties the court shall order the juror discharged."

Because the trial judge is in the best position to determine a juror's ability to serve impartially, we review a court's decision whether to excuse a juror for an abuse of discretion. State v. Elmore, 155 Wn.2d 758, 768-69, 123 P.3d 72 (2005); State v. Rupe, 108 Wn.2d 734, 748, 743 P.2d 210 (1987). " The trial judge is able to observe the juror's demeanor and, in light of that observation, to interpret and evaluate the juror's answers to determine whether the juror would be fair and impartial." Rupe, 108 Wn.2d at 749. A trial court abuses its discretion when it issues an order that is manifestly unreasonable or based on untenable grounds. State v. Depaz, 165 Wn.2d 842, 858, 204 P.3d 217 (2009) (quoting State v. Quismundo, 164 Wn.2d 499, 504, 192 P.3d 342 (2008)).

Mr. Gonzalez does not allege juror misconduct, but contends that the court erred by failing to excuse the juror without establishing the extent of the juror's fear of retaliation. He argues that " Juror 4, based upon his fears, was no longer a fair and impartial juror" and that in view of the court's limited inquiry, we can only speculate how the juror's fear may have impacted the deliberative process." Br. of Appellant at 10. Citing Rupe, Mr. Gonzalez argues that the court's minimization of the juror's concerns violated due process standards and constituted an abuse of the trial court's discretion.

In Rupe, the defendant argued that the trial court denied his right to a fair and impartial jury by refusing to excuse jurors he believed were predisposed to invoke the death penalty. Rupe, 108 Wn.2d at 748. Our Supreme Court reviewed the voir dire of the jurors at issue, concluded their responses were equivocal, and held that a trial court is not required to excuse a juror who has preconceived ideas if the juror can put his concerns aside to decide the case on the evidence and apply the law provided by the court. Id. at 748-49.

Here, nothing in the record indicates that the juror at issue was unable to make a decision based on the law and facts of the case. As Rupe indicates, one of the fundamental concerns in these cases is whether a juror's ability to fairly deliberate has been compromised. Id. Admittedly, the juror here cited safety issues and concerns about the lack of anonymity, but nothing in the court's colloquy with the juror established that he would not be able to fairly deliberate. In fact, at the end of the court's questioning, the juror affirmed that he would be able to follow his oath to evaluate the case according to the evidence and the court's instructions. Furthermore, the jurors were instructed:

You must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, prejudice, or personal preference. To assure that all parties received a fair trial, you must act impartially with an earnest desire to reach a proper verdict.CP at 124 (Instruction 1).

Jurors are presumed to follow instructions. State v. Johnson, 124 Wn.2d 57, 77, 873 P.2d 514 (1994). Significantly, the juror did not raise additional concerns during the remainder of the trial or indicate that he could not be impartial or follow the court's instructions. The record indicates that the juror was able to participate in jury deliberations without issue.

In sum, the court was able to observe the juror's demeanor during questioning and found nothing to suggest that he had preconceived ideas as to Mr. Gonzalez's guilt, that his concerns would affect the deliberative process, or that he had any issues incompatible with proper jury service. Accordingly, the court's decision to retain the juror was well within its broad discretion." Exhibit 3 at pp. 2-8.

B. Procedural History

Gonzalez appealed and the State cross-appealed. Exhibits 4-7. As noted, the court affirmed in an unpublished decision. Exhibit 3.

Gonzalez, represented by counsel, petitioned the State's highest court for review. Exhibit 8. On August 6, 2013, the Washington Supreme Court denied review without comment. Exhibit 9. The Court of Appeals issued its mandate August 14, 2013. Exhibit 10.


Gonzalez presents one federal habeas claim for relief:

" Petitioner's Sixth Amendment right to a fair and impartial jury was violated." ECF No. 6.


Respondent concedes Gonzalez " arguably exhausted his claim within the meaning of 28 U.S.C. § 2254(b)." ECF No. 9 at p. 6. The Court agrees Gonzalez exhausted the claim in state court.


In order to succeed with his § 2254 petition, Petitioner must establish that he is in custody in violation of the Constitution or laws of the United States. 28 U.S.C. § 2254(a). Petitioner must also establish that his claims were adjudicated on the merits in state court proceedings and that the adjudication of the claim " 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 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." § 2254(d). A determination of a factual issue made by the State court shall be presumed to be correct. § 2254(e). Petitioner has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.

A state court's decision is " contrary to" clearly established federal law only where " the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-14, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). There is an " unreasonable application" of clearly established federal law when a state court " correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner's case." Id. at 407-08. A state court decision can also involve an unreasonable application of clearly established precedent " if the state court either unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. The state court's error must be one that the habeas court concludes is objectively unreasonable, not merely erroneous or incorrect. Id. at 409-11.


Petitioner's habeas claim raises questions of law only and is properly resolved by a review of the existing record. Therefore, no evidentiary hearing is required.


Gonzalez alleges his right to an impartial jury was violated because the trial court did not further interview juror number 4 about his fears or poll the rest of the jurors to learn whether he expressed his fears of retaliation to them. ECF No. 6 at p. 8.

The Sixth Amendment guarantees criminal defendants the right to a " fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961); see Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998). " Although doubts regarding bias must be resolved against the juror, the defendants bear the burden of showing that the prospective juror was actually biased, and that the [trial] court abused its discretion or committed manifest error when it failed to excuse her for cause." United States v. Maloney, 699 F.3d 1130, 1135 (9th Cir. 2012) (internal citations and punctuation omitted). " If only one juror is unduly biased or prejudiced or improperly influenced, the criminal defendant is denied his Sixth Amendment right to an impartial panel." United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir. 1997).

Gonzalez alleges juror number 4, based on his fears, was no longer a fair and impartial juror. Exhibit 5 at p. 10; Exhibit 8 at p. 6. However, he fails to show juror bias. The judge reminded the juror of the oath he took and said, " I expect you to abide by that oath. . . . Okay?" The juror responded, " Okay." RP 599. There was no indication the juror would not be able to listen to the evidence and decide the case fairly. The juror's assurance was substantial evidence supporting the trial court's determination that the juror was not actually biased against the defendant.

A juror's " definitive and unequivocal" statement supports a trial court's finding of impartiality. See United States v. Maloney, 699 F.3d 1130, 1137-38 & n. 1. (9th Cir. 2012). A trial judge's finding that a juror was not biased is a factual finding presumed to be correct because " resolution [of the juror impartiality issue] depends heavily on the trial court's appraisal of witness credibility and demeanor." Thompson v. Keohane, 516 U.S. 99, 111, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995). This presumption of correctness also applies to implicit factual findings. Tinsley v. Borg, 895 F.2d 520, 525 (9th Cir. 1990). Here, Gonzalez's allegation does not meet his burden of adducing clear and convincing evidence sufficient to overcome the presumption of correctness afforded the trial court's finding of impartiality. See 28 U.S.C. § 2254(e) (1).

The state court's rejection of Gonzalez's juror bias claim did not contravene or unreasonably apply federal law. Accordingly, Gonzalez is not entitled to relief on this ground.


It is respectfully recommended that the Court deny the petition and dismiss the case with prejudice.


Any party may object to the magistrate judge's proposed findings, recommendations or report within fourteen (14) days following service with a copy thereof. Such party shall file with the Clerk of the Court all written objections, specifically identifying the portions to which objection is being made, and the basis of the objection. Attention is directed to Fed.R.Civ.P. 6(e), which adds another three (3) days from the date of mailing if service is by mail. A district judge will make a de novo determination of those portions to which objection is made and may accept, reject or modify the magistrate judge's determination. The district judge need not conduct a new hearing or hear arguments and may also receive further evidence or recommit the matter to the magistrate judge with instructions. United States v. Powell, 213 F.3d 615, 621 (9th Cir. 2000); 28 U.S.C. § 636(b) (1) (B) and (C); Fed.R.Civ.P. 73 and LMR 4, Local Rules for the Eastern District of Washington.

A magistrate judge's recommendation cannot be appealed to a court of appeals; only a district judge's order or judgment can be appealed.

The District Court Executive is directed to file this Order and provide copies to Petitioner, counsel for Respondent and the referring judge.

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