Docket Nº:0016188oa
Case Date:October 15, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit





WILLIAM HAROLD MANCUSO, Petitioner-Appellant-Cross-Appellee, v.

ANA M. OLIVAREZ, Respondent-Appellee-Cross-Appellant.

Nos. 00-16188, 00-16657; D.C. No. CV-96-0787-LKK


Appeal from the United States District Court for the Eastern District of California Lawrence K.

Karlton, Chief District Judge, Presiding

Argued and Submitted

October 15, 2001—San Francisco, California

Filed March 6, 2002

Amended June 11, 2002

Before: Robert R. Beezer, Stephen S. Trott, and Richard C. Tallman, Circuit Judges.

Opinion by Judge Tallman


Allison Claire, Assistant Federal Defender, Sacramento, Cali-fornia, for the petitioner-appellant/cross-appellee.

Jean M. Marinovich, Deputy Attorney General, Office of the Attorney General, Sacramento, California, for the respondent-appellee/cross-appellant.


The opinion filed March 6, 2002, reported at 282 F.3d 728 (9th Cir. 2002), is amended as follows: at page 737, delete the paragraph that begins "On habeas review, . . ." and insert the following language:

On habeas review, Mancuso is entitled to habeas relief only if it can be established that the alleged trial error had a substantial and injurious effect or influence on the jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); O’Neal v. McAninch, 513 U.S. 432, 436 (1995); Thompson v. Borg, 74 F.3d 1571, 1575 (9th Cir. 1996).1 In deter-

1We recognize that our prior decisions have not consistently interpreted or applied the Brecht standard. We have stated that a petitioner bears the burden of showing that a trial error had a substantial and injurious effect. Thomas v. Hubbard, 273 F.3d 1164, 1170 (9th Cir. 2002) (as amended); Rodriguez v. Marshall, 125 F.3d 739, 744 (9th Cir. 1997); Franklin v.

mining whether the error had a substantial and injurious effect, the Supreme Court has long held that:

The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.

Kotteakos v. United States, 328 U.S. 750, 765 (1946). See also Jeffries v. Blodgett, 5 F.3d 1180, 1190 (9th Cir. 1993) (same).

Page 738, replace "See Rodriguez v. Marshall, 125 F.3d 739, 744 (9th Cir. 1997)" with "See Rodriguez, 125 F.3d at 744."

Henry, 122 F.3d 1270, 1273 (9th Cir. 1997). We have also stated the converse, that the government bears the burden. Keating v. Hood, 191 F.3d 1053, 1062 (9th Cir. 1999) (as amended); Fisher v. Roe, 263 F.3d 906, 917 (9th Cir. 2001). And in other instances, we have stated as we do here that the reviewing court must determine independently whether a trial error had a substantial and injurious effect, without consideration of burdens of proof. Gray v. Klauser, 282 F.3d 633, 651 (9th Cir. 2002); Thomp-son, 74 F.3d at 1575. We hold that the last statement most accurately reflects current Supreme Court case law.

The Supreme Court has made clear that whether a trial error had a substantial and injurious effect is not to be analyzed in terms of burdens of proof. O’Neal, 513 U.S. at 436-37. We, as the reviewing court, have the responsibility to determine this legal question "without benefit of such aids as presumptions or allocated burdens of proof that expedite fact-finding at the trial." Id. at 437 (quoting R. TRAYNOR, THE RIDDLE OF HARMLESS ERROR 26 (1970)); see also Simmons v. Blodgett, 110 F.3d 39, 42 (9th Cir. 1997) ("Finding facts to determine if there is a constitutional error is a wholly different thing from deciding whether or not an error, once found, affected the verdict.") (as amended). The "conceptually clearer" question is to ask "Do [we, the judges on habeas review], think that the error substantially influenced the jury’s decision?" O’Neal, 513 U.S. at 436.

Page 738, replace "See Thompson v. Borg, 74 F.3d 1571, 1574 (9th Cir. 1996)" with "See Thompson, 74 F.3d at 1574".

Page 738, begin a new paragraph with the sentence reading, "The potential for prejudice is heightened when a juror interjects into the deliberations . . . " and ending with " . . . that jurors will bring their life experiences to bear on the facts of a case")."

Page 742, paragraph beginning, "Prior to trial, defense counsel moved to exclude any reference to that fact that . . ." change to read, "Prior to trial, defense counsel moved to exclude any reference to the fact that . . . ."

With these amendments, the panel has voted unanimously to deny the petition for rehearing and the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no judge of the court has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.

The petition for rehearing and the suggestion for rehearing en banc are DENIED.


TALLMAN, Circuit Judge:

Respondent Ana M. Olivarez appeals the district court’s order granting, in part, California state prisoner William Mancuso’s 28 U.S.C. § 2254 habeas petition on the ground of juror misconduct. Mancuso cross-appeals the district court’s denial of five of his remaining claims for relief. We have jurisdiction under 28 U.S.C. §§ 1291 & 2253. Because we deny the habeas corpus relief awarded by the district court as to the juror misconduct claim, we reverse, in part, and affirm the remainder of the district court’s order.


Mancuso was convicted in 1980 of first degree murder and robbery. The California Court of Appeal summarized the facts surrounding the murder as follows:1

In mid-April 1978, defendant made three visits to Hurst Auto Wreckers in Sacramento in an attempt to construct a silencer for a firearm.

* * *

On one of defendant’s visits to the yard, he was observed to be in possession of a .32 caliber automatic handgun with a threaded barrel.

At about 1 a.m. on May 30, 1978, defendant entered the Tradewinds Bar in Sacramento. Soon afterwards another patron, Marcie Crooks, entered; at that time the only other person present was the bartender, Dale King.

Crooks and defendant conversed; defendant asked her if she knew a person named Steve, describing him as a " ‘little fat short guy, fat and short, and he used to work here.’ " Defendant was describing Ste-phen Christensen, a friend of defendant’s who had been employed at the bar in the spring of 1978. Crooks said she remembered him. Defendant told her Steve had made out a $270 check to Curt Thomas, the bar owner, and that Thomas was " ‘re-

1For purposes of this appeal, the state court’s determinations of historical fact are presumed correct. See 28 U.S.C. § 2254(d) (1994).

ally mad about it.’ " He repeated several times that Thomas was angry. Crooks suggested that it was hard to collect on a check after 90 days; defendant replied, " ‘Well, there are other means.’ "

Crooks departed shortly before the bar closed at 2 a.m., leaving King and defendant alone. Before leaving she noticed the outline of an automatic handgun at defendant’s hip.

After Crooks left, King saw defendant fitting a silencer to a .32 caliber automatic handgun. King put his hands up but defendant told him to put them down. He said he was there "on a contract" and " ‘If this goes all right,’ . . . ‘I will leave you alive in the bathroom.’ " Defendant ordered King to the bar’s telephone, telling him to call Curt Thomas and fabricate a story to get Thomas to come to the bar. King did as ordered, calling Thomas at home and saying he could not find the keys to the front door.

After the call, defendant ordered King behind the bar and told him, " ‘I know you’re married and got kids by your conversation . . . with that lady that was just in here.’ " He took King’s driver’s license, saying " ‘I am not in this thing alone.’ " " ‘If everything goes all right,’ . . . ‘you’re going to [be] left alive.’ " He said he would send King the driver’s license in about a week " ‘if everything comes out all right[.] . . .’ "

Thomas could eventually be heard approaching. Defendant had King turn down the lights. When Thomas entered defendant ran behind him, yelled, " ‘You fucked over your last dude, you should have paid up, prick,’ " and killed him with two shots to the chest. King, who had dropped to the floor, then heard defendant say, " ‘I got your gun now, prick,’ "

and saw defendant put something in his belt. Defendant went through Thomas’ pockets and wallet, then put the gun to Thomas’ head and fired once again.

After removing money from the bar’s cash registers defendant told King they were going to "the house" for "the big money." He was referring to the Thomas’ house behind the bar. Defendant directed King to walk in front of him to the house, instructing King to get Thomas’ wife to the door and tell her there had been trouble in the bar. However, finding the house empty, the two men walked back to the bar. On their way back, they worked out a description King could give police of the killer. King said he would say the man was 200 pounds, 5 feet 7 inches, and that he said he was from the Alcoholic Beverage Control. Defendant told King to say the man was Mexican or Italian.

Back at the bar, defendant produced a set of handcuffs and had King handcuff himself to a waterpipe under the bathroom sink. Defendant again threatened, " ‘I ain’t in this thing alone. I got a friend sitting outside in a car.’ . . . ‘I am going to leave in a few minutes,’ . . . ‘If you yell or scream or try to get out of here, he’s going to come in here and finish you.’ " He added, " ‘I’ll be checking the papers,’ . . . ‘If everything comes out all right, you tell them exactly what you told me you were going to tell them,’ . . . ‘You’ll get your driver’s license back in a week.’ " He told King that if King did not make any noise he would call the...

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