Tobel v. Benedetti, 091420 FED9, 18-15892

Docket Nº:18-15892
Opinion Judge:SILER, Circuit Judge
Party Name:Gerald Von Tobel, Petitioner-Appellant, v. James Benedetti; Attorney General for the State of Nevada, Respondents-Appellees.
Attorney:Kimberly Sandberg (argued), Jonathan Kirshbaum, and Ryan Norwood, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant. Natasha M. Gebrael (argued) and Ashley A. Balducci, Deputy Attorne...
Judge Panel:Before: Eugene E. Siler, Jay S. Bybee, and Ryan D. Nelson, Circuit Judges.
Case Date:September 14, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Gerald Von Tobel, Petitioner-Appellant,

v.

James Benedetti; Attorney General for the State of Nevada, Respondents-Appellees.

No. 18-15892

United States Court of Appeals, Ninth Circuit

September 14, 2020

Argued and Submitted December 2, 2019 San Francisco, California

Appeal from the United States District Court No. 3:10-cv-00073-LRH-VPC for the District of Nevada Larry R. Hicks, District Judge, Presiding

Kimberly Sandberg (argued), Jonathan Kirshbaum, and Ryan Norwood, Assistant Federal Public Defenders; Rene L. Valladares, Federal Public Defender; Office of the Federal Public Defender, Las Vegas, Nevada; for Petitioner-Appellant.

Natasha M. Gebrael (argued) and Ashley A. Balducci, Deputy Attorneys General; Aaron D. Ford, Attorney General, Office of the Attorney General, Las Vegas, Nevada; for Respondents-Appellees.

Before: Eugene E. Siler, [*] Jay S. Bybee, and Ryan D. Nelson, Circuit Judges.

SUMMARY

[**]

Habeas Corpus

The panel withdrew a memorandum disposition filed January 9, 2020; filed a published opinion affirming the district court's denial of Nevada state prisoner Gerald Von Tobel's habeas corpus petition; denied a petition for rehearing; and denied on behalf of the court a petition for rehearing en banc, in a case in which a juror, during the trial, had a conversation with a police-officer neighbor who told the juror something to the effect that a defendant in a criminal trial would not be there if he had not done something wrong.

Von Tobel contended that the test used by the Nevada Supreme Court to evaluate juror misconduct in his case was "contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), because it placed a more onerous burden on him to prove prejudice than under the applicable Supreme Court precedent and because it did not presume that the contact was prejudicial.

The panel observed that there was no decision of the United States Supreme Court that precludes the Nevada Supreme Court from requiring the petitioner to show a reasonable probability or likelihood that the contact affected the verdict. Applying AEDPA's highly deferential standard, the panel therefore concluded that the Nevada Supreme Court's test to evaluate juror misconduct-and the application of it in this case-is not contrary to, nor does it involve an unreasonable application of, clearly established Federal law.

ORDER

The memorandum disposition filed January 9, 2020 is withdrawn. A published opinion authored by Judge Siler is filed concurrently with this order.

The panel judges have voted to deny appellant's petition for rehearing.

Judge R. Nelson voted to deny the petition for rehearing en banc, and Judges Siler and Bybee recommended denying the petition for rehearing en banc.

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

Appellant's petition for rehearing and petition for rehearing en banc, filed March 24, 2020, is DENIED.

OPINION

SILER, Circuit Judge

Gerald Von Tobel, a Nevada state prisoner, appeals from the district court's denial of his petition for a writ of habeas corpus. During Von Tobel's trial, one of the jurors had a conversation with a neighbor who is a police officer about difficulties the juror was having in the case. Sometime during the conversation, the police officer neighbor told the juror something to the effect that a defendant in a criminal trial would not be there if he had not done something wrong.

In evaluating this contact on direct appeal, the Nevada Supreme Court applied its own test for evaluating juror misconduct and concluded that Von Tobel had not met his burden to show prejudice. In his petition for a writ of habeas corpus, Von Tobel contends that the test used by the Nevada Supreme Court to evaluate juror misconduct in his case was "contrary to, or involved an unreasonable application of, clearly established Federal law," 28 U.S.C. § 2254(d)(1), because it placed a more onerous burden on him to prove prejudice than under the applicable Supreme Court precedent and because it did not presume that the contact was prejudicial. We hold that the Nevada Supreme Court's test to evaluate juror misconduct-and the application of it in Von Tobel's case-is not contrary to, nor does it involve an unreasonable application of, clearly established Federal law and we affirm the district court's denial of Von Tobel's habeas petition.

I.

Von Tobel was convicted in 2005 of numerous counts of physical and sexual abuse of his girlfriend's three children. At trial, the only direct evidence of abuse was the testimony of the children. Their testimony included some inconsistencies, such as not remembering incidents of abuse that they had previously disclosed. Von Tobel testified and denied the allegations.

The jury deliberated across four days for a total of around twenty hours. During deliberations, the jury sent several notes to the judge indicating they were having trouble reaching a verdict on some of the charges. Each time the judge instructed them to continue deliberating. The jury eventually reached a unanimous verdict on all counts, finding Von Tobel guilty on twenty-five counts (one of which was not guilty but guilty of a lesser offense) and not guilty on one count.1

After the jury was released, the judge invited them to "stay and chat" with the attorneys to "discuss the case." When asked what factors in the case had an impact on the verdict, Juror No. 200 stated: "It's like my neighbor, who is a cop, always says, '[h]e wouldn't be here if he didn't do something.'" This comment resulted in a motion for a new trial and an evidentiary hearing.

At the evidentiary hearing, Juror No. 200 was called as a witness. He clarified that the conversation with his neighbor occurred during trial, prior to deliberations. Juror No. 200 said that he barely knew his neighbor and that he believed that his neighbor worked for a different police department than the one involved in the case. Juror No. 200 explained that the conversation with his neighbor occurred when he went out to the community mailbox in his neighborhood and ran into his neighbor. He told the neighbor "[y]ou know, I don't know how you put up with this stuff that you have to do with." The neighbor replied "oh[] [i]t's just [what] you have to do." Juror No. 200 then said that he was on jury duty and having a tough time because "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." During the conversation, the neighbor told Juror No. 200 about an unrelated case in a different jurisdiction where "a kid got killed in a gang something or other" and some people had already "plead out [and were] serving time while others were waiting to go to Court." Sometime during the conversation-Juror No. 200 does not remember when-the neighbor said something to the effect of "if they're here, they're here for a reason" or that "[h]e wouldn't be here if he didn't do something."

During the evidentiary hearing, Juror No. 200 stated that he: (1) understood the presumption of innocence and that it applied to Von Tobel; (2) did not make up his mind about Von Tobel's guilt before deliberations; and (3) changed his mind several times about Von Tobel's guilt during deliberations. Regarding the conversation with his neighbor, Juror No. 200 said that: (1) it did not affect his ability to keep an open mind while hearing the evidence; (2) he did not conclude from his neighbor's comment that Von Tobel must have done something otherwise he would not be in court; and (3) the conversation had no influence on his thought process, on how he viewed the evidence, or on the verdict.

The court found that Juror No. 200 violated the court's order not to discuss the case. But the court denied Von Tobel's motion for a new trial, explaining that Juror No. 200 "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 deliberation with his fellow jurors." The court added that Juror No. 200 "never wa[i]vered with respect to the presumption of innocence," did not have a preconceived idea about Von Tobel's guilt, and that the conversation with his neighbor "did not affect his belief or reliance upon the presumption of innocence." Finally, the court concluded that there was no evidence that Juror No. 200 discussed the nature of the case with his neighbor, or that the conversation had any influence on the determination of guilt or on the presumption of innocence.

On appeal, the Nevada Supreme Court conducted a de novo review of the trial court's decision. The test for allegations of juror misconduct in Nevada comes from Meyer v. State, 80 P.3d 447 (Nev. 2003). Under it, a motion for a new trial based on allegations of juror misconduct has the burden to show that (1) the misconduct occurred and (2) the misconduct prejudiced the defendant. Id. at 455. When the misconduct is egregious, the Nevada Supreme Court applies a conclusive presumption of prejudice without any showing of prejudice. Id. When the misconduct is not egregious, the defendant must prove prejudice by showing that, in reviewing the trial as a whole, there was "a reasonable probability or likelihood that the juror misconduct affected the verdict." Id. at 456.

The Nevada Supreme Court found that Juror No. 200 committed misconduct. Von Tobel v. State, No. 45684, at *3 (Nev. Feb. 29, 2008). But it determined that this was not an egregious case-triggering the conclusive presumption of prejudice-because Juror No. 200...

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