Neron v. Tierney

• Citation: 841 F.2d 1197
• Decision Date: 11 December 1987
• Docket Number: No. 87-1710,87-1710
• Parties: Louis NERON, Petitioner, Appellee, v. James E. TIERNEY, etc., et al., Respondents, Appellants. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1197

841 F.2d 1197

Louis NERON, Petitioner, Appellee, v. James E. TIERNEY, etc., et al., Respondents, Appellants.

No. 87-1710.

United States Court of Appeals First Circuit.

Heard Dec. 11, 1987.

Decided March 15, 1988.

Peter J. Brann, Asst. Atty. Gen., with whom James E. Tierney, Atty. Gen., and Thomas D. Warren, Deputy Atty. Gen., Augusta, Me., were on brief, for respondents, appellants.

Joseph H. Field with whom Mary Lou Ciolfi and Loyd, Bumgardner & Field, Brunswick, Me., were on brief, for petitioner, appellee.

Before COFFIN, TORRUELLA and SELYA, Circuit Judges.

SELYA, Circuit Judge.

In October 1985, appellee, Louis Neron, was convicted in a Maine state court of multiple counts of gross sexual misconduct in violation of 17-A Me.Rev.Stat.Ann. Sec. 253 (1985). He thereafter moved for judgment of acquittal or in the alternative, a new trial. The motion was denied and sentence imposed. The Maine Supreme Judicial Court, sitting as the Law Court, rejected his direct appeal. State v. Neron, 519 A.2d 197 (Me.1986) (Neron I ).

Undaunted, Neron applied for habeas review in the United States District Court for the District of Maine under 28 U.S.C. Secs. 2241-54, naming James E. Tierney, Maine's attorney general, and James R. Clemons, warden of the state penitentiary, as respondents. He urged that he had been convicted in derogation of his constitutional rights to (1) due process and (2) trial by an impartial jury. The district court was persuaded that petitioner's fourteenth amendment rights had been abridged, and granted relief. Neron v. Clemons, 662 F.Supp. 854 (D.Me.1987) (Neron II ). We reverse.

I

The procedural background and factual underpinnings of the charged crimes and petitioner's state trial are well summarized in Neron I, 519 A.2d at 198-99, and no useful purpose would be served by retracing the Law Court's steps. Rather, we will confine ourselves to an elucidation of the facts directly germane to whether Neron was unfairly saddled with a juror who should not have been sworn, for that is the heart of the habeas case. We take these (essentially undisputed) facts from the state court record.

Robert Neron, one of appellee's sons, was not in court during appellee's trial. He claimed never to have seen a jury roster, nor to have known the composition of the sitting jury. He was seemingly a stranger to his father's ordeal. Within a day or two after the verdict, however, Robert's detachment ended. While at the family homestead, he happened upon a jury list. Spotting the name of a particular juror, ¹ Robert concluded that she was someone with whom he had once been romantically entangled. This discovery became the centerpiece of his father's posttrial motion, wherein petitioner claimed that the juror had not only consorted with Robert, ² but had also met petitioner's wife, Lucy, and other son, Paul. The juror's failure spontaneously to disclose these meetings or reveal the relationship, Neron asserted, constituted misconduct. Moreover, it deprived the defense of a meaningful opportunity to inquire into her neutrality. This concatenation of circumstances, petitioner contended, rendered his trial constitutionally deficient.

The state judge convened an evidentiary hearing during which Neron's counsel enjoyed relatively free rein in the presentation of evidence. These ground rules notwithstanding, petitioner called only Robert as a witness. He then rested, but urged the judge, if inclined to disallow the motion, to summon Juror 38 and question her. The judge declined this invitation, chronicling the general reluctance of Maine courts to undertake such an inquiry and concluding that, given the dearth of evidence of bias or misconduct, a juror interview was unwarranted. The new trial motion was denied and the Law Court subsequently affirmed. Neron I, 519 A.2d at 201. ³

Petitioner's reception in a federal forum was more cordial. After consideration of the state court record, the federal district judge ruled that:

When allegations of juror partiality or misconduct are supported by particularized and nonfrivolous evidence, due process requires the trial court to question the juror on the record about the juror's partiality or misconduct in light of the evidence, unless some other evidence clearly establishes that no such questioning is required to guarantee the impartiality or proper conduct of the juror.

Neron II, 662 F.Supp at 862. Applying this principle to petitioner's case, the district court determined that due process mandated interrogation of the juror. Id. at 865. It ordered the writ to issue unless the state superior court, within a set period, either granted a new trial or conducted a more intensive inquiry (including an interview of Juror 38). Id.

II

Our role in a case such as this is more constrained than on direct appeal. In habeas jurisdiction, "we review state convictions solely for error of constitutional stature." Puleio v. Vose, 830 F.2d 1197, 1204 (1st Cir.1987). See 28 U.S.C. Sec. 2254(a). It is not enough that we repine some state court practice; "it must be established not merely that the [action] is undesirable, erroneous, or even 'universally condemned,' but that it violated some right which was guaranteed to the defendant by the [Constitution]." Cupp v. Naughten, 414 U.S. 141, 146, 94 S.Ct. 396, 400, 38 L.Ed.2d 368 (1973). Congress, after all, did not authorize the federal courts to be roving watchdogs to sniff out all ostensible errors in state criminal proceedings. See Lefkowitz v. Fair, 816 F.2d 17, 23 (1st Cir.1987).

As to matters of fact, the state courts' findings are usually entitled, under 28 U.S.C. Sec. 2254(d), to a presumption of correctness. Sumner v. Mata, 449 U.S. 539, 547-51, 101 S.Ct. 764, 769-71, 66 L.Ed.2d 722 (1981) (Sumner I ); Tavares v. Holbrook, 779 F.2d 1, 3 (1st Cir.1985). ⁴ Federal courts must "face up to any disagreement as to the facts and ... defer to the state court unless one of the factors listed in Sec. 2254(d) is found." Sumner v. Mata, 455 U.S. 591, 597-98, 102 S.Ct. 1303, 1307, 71 L.Ed.2d 480 (1982) (per curiam) (Sumner II ). In this case, the court below refused to extend the customary presumption of correctness. In its view, "the factfinding procedure employed by the State court was not adequate to afford a full and fair hearing," 28 U.S.C. Sec. 2254(d)(2), thus triggering a statutory exception. Neron II, 662 F.Supp. at 863. We cannot accept the district court's conclusion, however, for it merely assumes that which it set out to decide.

Section 2254(d)(2) does not allow us to superimpose federal choices upon the state courts merely because we think some "other" procedure might have been "better." So long as the state court has provided "an opportunity for full and fair litigation," Stone v. Powell, 428 U.S. 465, 482, 96 S.Ct. 3037, 3046, 49 L.Ed.2d 1067 (1976) (emphasis supplied), the federal mandate is satisfied. The proper focus of analysis, we suggest, is more narrow than the district court appears to have assumed: in habeas review, the focal point is simply the constitutional adequacy of the procedures utilized to determine whether juror inquiry was necessary to resolve questions of bias and/or misconduct, nothing broader or more generalized. In the case at bar, the trial judge held a posttrial evidentiary hearing, allowed unlimited presentation of live (nonjuror) witnesses, and permitted cross-examination. In so doing, the state provided Neron the sort of "opportunity" to justify the necessity of a juror interview that the Constitution and section 2254(d)(2) required.

We find Maine's approach to have been comfortably within the universe of constitutionally acceptable ones. Its procedural scheme, requiring Neron to make a satisfactory threshold showing of substantiality before invading the juror's privacy, cannot be said to be so harsh as to offend the Constitution. Cf. United States v. Valenzuela-Bernal, 458 U.S. 858, 873, 102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193 (1982) (under Compulsory Process Clause, accused must make preliminary showing that aliens could likely provide evidence "both material and favorable to the defense" before government required to produce them).

The deference accorded to the state courts' findings of fact can also be undercut by a demonstration that "the material facts were not adequately developed at the State court hearing." 28 U.S.C. Sec. 2254(d)(3). The district court found this exception, too, to have been mobilized in Neron's case. Neron II, 662 F.Supp. at 863. We disagree. As we have just remarked, Neron was given the essential "opportunity to prove actual bias" at an evidentiary hearing. Smith v. Phillips, 455 U.S. 209, 215, 102 S.Ct. 940, 945, 71 L.Ed.2d 78 (1982). At that stage, petitioner failed to show enough to necessitate the further step of juror inquiry. Moreover, his default was not because of roadblocks unfairly erected by the prosecution, the trial court, or the circumstances. To the extent that the facts necessary to cross the threshold might not have been fully developed, it was--as we point out infra--because of a series of deliberate tactical choices on petitioner's part. Inasmuch as "the totality of the state proceedings provided the necessary opportunity to litigate," Pignone v. Sands, 589 F.2d 76, 79 (1st Cir.1978), Neron cannot be heard to complain that he chose to avail himself of the opportunity but sparingly.

In our view, what transpired in the Maine courts, though perhaps not a textbook model, was adequate to satisfy the minimum level demanded by 28 U.S.C. Sec. 2254(d). To be sure, it might have been preferable to allow a juror interview out of an abundance of caution. But we see no federally-redressable deficiency in the manner in which the session was conducted or the facts developed. Cf., e.g., Ristaino v. Ross, 424 U.S. 589, 597 n. 9, 96 S.Ct. 1017, 1022 n. 9, 47 L.Ed.2d 258 (1976) (voir dire inquiry disallowed by state court not constitutionally compelled even...