Tinsley v. Borg

Decision Date19 January 1990
Docket NumberNo. 87-2238,87-2238
PartiesRussell A. TINSLEY, Petitioner-Appellant, v. Bob BORG, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Richard R. Wiebe, Brobeck, Phleger & Harrison, San Francisco, Cal., for petitioner-appellant.

Gerald A. Engler, Deputy Atty. Gen., State of Cal., San Francisco, Cal., for respondent-appellee.

Appeal from the United States District Court for the Northern District of California.

Before WALLACE, POOLE and HALL, Circuit Judges.

WALLACE, Circuit Judge:

Tinsley, a state prisoner, appeals from the district court's denial of his 28 U.S.C. Sec. 2254 habeas corpus petition without an evidentiary hearing. Tinsley contends that he was denied a fair state court trial because of juror misconduct, an erroneous evidentiary ruling, and ineffective assistance of counsel. The district court had jurisdiction under 28 U.S.C. Sec. 2241. We have jurisdiction over Tinsley's timely appeal pursuant to 28 U.S.C. Sec. 2253. We affirm.


On July 30, 1984, Tawnya, a 17-year-old minor, met Tinsley for the second time when she went to a friend's apartment to pick up some toys for her niece. The box of toys was heavy, and Tawnya asked Tinsley to help carry them. Tinsley replied that he had to go to work, but agreed to take the toys to his nearby apartment and help her carry them home after work later that night.

At Tinsley's apartment that night, Tawnya accepted a drink of brandy and some cocaine. When she said she had to return home, Tinsley prevented her from leaving, struggled with her and hit her, forcibly disrobed her, raped her twice and committed other sexual acts. Early the next morning, Tinsley allowed her to leave.

At trial, Tinsley's defense was that the charged acts were consensual. He testified that he actually left the apartment several times while Tawnya was there, so she was free to leave. He testified that he hit her only to prevent her from passing out because of the cocaine.

The jury found Tinsley guilty of forcible rape, oral copulation, penetration with a foreign object, assault by means of force likely to produce great bodily injury, and false imprisonment. After exhausting his available state remedies, Tinsley unsuccessfully filed a habeas corpus petition in federal court, and this appeal followed.


We first consider the threshold jurisdictional issue: whether Tinsley's appeal was timely. We review our jurisdiction de novo. Buffalo v. Sunn, 854 F.2d 1158, 1161 (9th Cir.1988).

To appeal a district court's denial of a petition for habeas corpus, the applicant must file a timely notice of appeal (here 30 days) and obtain a certificate of probable cause from the district court. 28 U.S.C. Sec. 2253; Fed.R.App.P. 4(a) & 22(b); see, e.g., Pettibone v. Cupp, 666 F.2d 333, 334 (9th Cir.1981). If the district judge denies the certificate, the applicant may then request it from the court of appeals. Fed.R.App.P. 22(b).

The rules do not explicitly state the order in which an applicant should take these steps. The Second Circuit has suggested that "the more appropriate procedure is for an applicant to take an appeal by filing a timely notice of appeal, seek a certificate of probable cause, and then proceed with the appeal," Latella v. Jackson, 817 F.2d 12, 13 (2d Cir.1987), cert. denied, 484 U.S. 1010, 108 S.Ct. 708, 98 L.Ed.2d 658 (1988), but has stated that it "would not dismiss a timely appeal merely because an application for a certificate was made (or indeed granted) prior to the time that the notice [of appeal] was filed." Id.

The problem here is that after Tinsley filed his notice of appeal, he timely filed a motion to reconsider. This effectively nullified his notice of appeal. See Fed.R.App.P. 4(a)(4); 9 J. Moore & R. Ward, Moore's Federal Practice p 203.11 at 3-50 (1989). The Rule 59(e) motion to alter or amend the judgment effectively revives the district court's jurisdiction. See id.; see also Tripati v. Henman, 845 F.2d 205, 205-06 (9th Cir.1988). The time to file a notice of appeal begins to run after the entry of the order granting or denying the Rule 59(e) motion, and a new notice must be filed. Fed.R.App.P. 4(a)(4). He did not do so.

We nonetheless have jurisdiction to hear Tinsley's appeal because we treat his timely pro se motion for a certificate of probable cause as a timely notice of appeal. Numerous circuits, including our own, have "held that a request for a certificate of probable cause can serve 'double-duty' as notice of appeal." McMillan v. Barksdale, 823 F.2d 981, 983 (6th Cir.1987) (collecting cases); Poe v. Gladden, 287 F.2d 249, 251 (9th Cir.1961).


We review de novo the district court's denial of Tinsley's habeas corpus petition. Carter v. McCarthy, 806 F.2d 1373, 1375 (9th Cir.1986), cert. denied, 484 U.S. 870, 108 S.Ct. 198, 98 L.Ed.2d 149 (1987).

Tinsley contends that he was denied a fair trial because one juror, Smith, was biased. The sixth amendment right to a jury trial "guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 1642, 6 L.Ed.2d 751 (1961). "Even if 'only one juror is unduly biased or prejudiced,' the defendant is denied his constitutional right to an impartial jury." United States v. Eubanks, 591 F.2d 513, 517 (9th Cir.1979) (Eubanks), quoting United States v. Hendrix, 549 F.2d 1225, 1227 (9th Cir.) (Hendrix), cert. denied, 434 U.S. 818, 98 S.Ct. 58, 54 L.Ed.2d 74 (1977).

Smith testified during voir dire that she worked for about 30 years as a psychiatric social worker, that she occasionally would deal with crisis cases, that she was trained to deal with rape victims, and that, notwithstanding the nature of the charges involved in Tinsley's case, she would be able to be a fair juror. She said that she did not recall counseling any rape victims.

During voir dire in a subsequent misdemeanor trial, Smith revealed that, contrary to her testimony during Tinsley's voir dire, she had testified in court on behalf of a rape victim, that it had been her first time on the witness stand, and that she had found the experience "anxiety provoking."

Tinsley's counsel moved for a new trial on the ground of juror misconduct. At a subsequent hearing, Smith was questioned by both the prosecution and the defense. Smith admitted her error in failing to reveal her counseling of a rape victim and stated that she had worked with one rape victim intermittently for approximately a year and a half. She stated that although she felt no emotional attachment to the rape victim, testifying in her behalf "wasn't easy." Approximately three years before Tinsley's trial, Smith had testified for 10 to 15 minutes at the alleged rapist's trial, opining that her patient had in fact been raped and was suffering trauma as a result. She stated that she "just didn't recall [the rape counseling] at that particular point ... and remembered it later ... during the course of the trial." She testified that she could not remember whether she mentioned the information to anyone, and the record discloses no evidence of her doing so. She testified that she had been fair as a juror and had no recollection of thinking about the prior counseling episode during deliberations.

After the testimony, Tinsley's counsel admitted that "in this particular case, Ms. Smith was very candid with us about the situation and her subjective feeling was overall ... that she was in her mind fair." Counsel contended that she might have been biased nonetheless, and thus a new trial was warranted.

At the conclusion of this hearing, the state trial judge, without comment, denied the motion for a new trial. The state court of appeals found that the record supported "the implied determination of the trial court that no juror misconduct occurred and that Ms. Smith was able to, and did, in fact, function as a fair and impartial juror."


The Constitution "does not require a new trial every time a juror has been placed in a potentially compromising situation." Smith v. Phillips, 455 U.S. 209, 217, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982) (Phillips ). "Due process means a jury capable and willing to decide the case solely on the evidence before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen." Id. The remedy for allegations of juror partiality is a post-trial hearing in which the defendant has the opportunity to prove bias. Id.

The Supreme Court has explained that

to obtain a new trial in such a situation, a party must first demonstrate that a juror failed to answer honestly a material question on voir dire, and then further show that a correct response would have provided a valid basis for a challenge for cause. The motives for concealing information may vary, but only those reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial.

McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 850, 78 L.Ed.2d 663 (1984) (McDonough ). This standard applies in civil and criminal cases. See id.; United States v. Aguon, 851 F.2d 1158, 1170 (9th Cir.1988) (en banc).

When such a post-trial hearing is held, the state court's findings are entitled to a presumption of correctness on federal habeas corpus review. 28 U.S.C. Sec. 2254(d); Phillips, 455 U.S. at 218, 102 S.Ct. at 946. This rule applies to the factual findings of both state trial and appellate courts. Rushen v. Spain, 464 U.S. 114, 120, 104 S.Ct. 453, 456, 78 L.Ed.2d 267 (1983) (per curiam) (Spain ); Sumner v. Mata, 455 U.S. 591, 597-98, 102 S.Ct. 1303, 1306-07, 71 L.Ed.2d 480 (1982) (per curiam) (Mata II ); Sumner v. Mata, 449 U.S. 539, 545-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981) (Mata I ). This obtains unless one of the circumstances listed in 28 U.S.C. Sec. 2254(d)(1) to (7) exists, unless the determination is not...

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