Vansickel v. White

Decision Date27 January 1999
Docket NumberNo. 97-17143,97-17143
Citation166 F.3d 953
Parties99 Cal. Daily Op. Serv. 743, 1999 Daily Journal D.A.R. 915 Michael Edward VANSICKEL, Petitioner-Appellant, v. Theo WHITE, Warden, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Connie Marie Alvarez, Federal Public Defender, Sacramento, California, for petitioner-appellant.

Patrick J. Whalen, Deputy Attorney General, Sacramento, California, for respondent-appellee.

Appeal from the United States District Court for the Eastern District of California; William B. Shubb, District Judge, Presiding. D.C. No. CV-95-01355-WBS.

Before: REINHARDT, NOONAN and THOMPSON, Circuit Judges.

Opinion by Judge THOMPSON; Dissent by Judge REINHARDT.

DAVID R. THOMPSON, Circuit Judge:

Michael Edward Vansickel appeals the judgment of the district court denying his habeas petition under 28 U.S.C. § 2254. Vansickel was tried and convicted of first degree murder with the special circumstance of lying in wait. During jury selection, he was erroneously denied half of his peremptory challenges, but he failed to contemporaneously object.

This case presents the question whether the erroneous denial of peremptory challenges provided for by state statute violates a defendant's due process rights under the United States Constitution. It also presents the question whether, if a federal constitutional violation occurs in this circumstance, automatic reversal of the defendant's state court conviction is required, or whether, when the defendant has procedurally defaulted on his federal constitutional claim in state court, he must establish cause and prejudice for the default.

We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm the district court's denial of the writ. We hold that Vansickel's constitutional rights were violated because he did not receive the full complement of peremptory challenges he was entitled to under California law. However, Vansickel procedurally defaulted his claim in state court and this bars federal habeas review unless he can demonstrate both cause and prejudice, which he cannot.


Vansickel and Mark Howard, the victim, were in a car that crashed into a drainage ditch in Corning, California. When the police arrived they found Howard in the car; he had been shot in the head at close range by a .22 caliber revolver.

A resident saw Vansickel running across a nearby lawn and heard him say that his friend had been shot, he did not do it, and not to call the police. When the police arrived, they found Vansickel lying in a driveway. As they approached, Vansickel told them that he had the murder weapon. He then displayed a gun, a Ruger .22-caliber revolver, wrapped in a blood-soaked shirt. The officers took cover and ordered Vansickel to drop the gun. Vansickel fired a shot and then dropped the gun and surrendered. He had broken his hip during the car accident and was taken to a hospital.

When Vansickel was questioned at the hospital, he claimed that a third person, Dan, had been in the car and had shot Howard. However, Vansickel later told his former girlfriend that he had "put two rounds into Mark [Howard]" and he had made up the story about Dan. Vansickel further discredited his claims of innocence by sending letters from jail that were admitted into evidence at trial. In one of the letters, Vansickel stated: "I think I fucked up by telling them that there was one more person in the car and that he shot Mark. I gave them a fony [sic] description an [sic] what he was wearing." Later in the same letter, he wrote, "I had to say some[thing] to the cops so I made up this Dan...." At trial Vansickel conceded he had shot Howard.

Following his conviction, Vansickel filed a motion for a new trial because during jury selection he was denied half of his peremptory challenges. Under California Code of The state court judge had discussed jury selection with counsel at a pretrial conference. Recollections of what transpired at the conference conflict, however it is clear that both the court and defense counsel agreed that the defense was entitled to ten peremptories. The judge recalled that defense counsel stated it was his understanding he was entitled to ten peremptories and the court agreed. Defense counsel recalled that he asked the court how many peremptories he was entitled to, and the court said ten. The prosecuting attorney remained silent.

Civil Procedure § 231, a criminal defendant who is on trial for an offense where the penalty is death or life imprisonment is entitled to twenty peremptory challenges. 1 Vansickel was only allowed ten peremptories.

During jury selection, Vansickel exercised the ten peremptory challenges. After Vansickel's tenth challenge, the court stated, "I think we have a jury, Counsel." Both the prosecutor and the defense agreed.

After the verdict, but prior to sentencing, the court realized it had erroneously denied Vansickel his full allotment of peremptory challenges. The court immediately contacted the prosecutor and defense counsel and revealed the error.

Vansickel then moved for a new trial and presented evidence that he had been dissatisfied with the composition of the jury. Vansickel argued he would have used the additional peremptory challenges. In support of this argument, defense counsel presented a jury chart which had an asterisk next to juror number two, Mr. Frank. Defense counsel argued that he would have challenged Mr. Frank, who was a pharmacist, because Vansickel tested positive for illegal drug use after the murder, and defense counsel did not want a pharmacist on the jury. Further, defense counsel argued he would have used two more peremptory challenges to try to put on the jury two other potential jurors from the jury pool who he felt would be more sympathetic to the defense.

The trial court denied the motion for a new trial. The court reasoned that because defense counsel failed to make a contemporaneous objection to the loss of peremptory challenges, the court could only grant the motion if Vansickel demonstrated prejudice. The court found no prejudice. The court stated it could see no logic in defense counsel's argument that because juror number two, Mr. Frank, was a pharmacist he would have a strong feeling about someone with drugs in their system. Further, Vansickel's use of illegal drugs was not a major part of the case. The court dismissed as "the merest speculation" defense counsel's argument that he would have used peremptories to try to put two other persons on the jury. The court stated that if these two potential jurors had been drawn and on voir dire they turned out to be as favorable to the defense as defense counsel claimed, the prosecution most likely would have used its peremptories to strike them.

The California Court of Appeal affirmed the trial court. It determined that Vansickel's failure to timely object required that he demonstrate prejudice. The standard for prejudice under California law is miscarriage of justice. The Court of Appeal held that Vansickel could not demonstrate prejudice for essentially the same reasons relied on by the trial court. It concluded that Mr. Franks's occupation as a pharmacist was not prejudicial because drugs were not a significant part of the case and Vansickel did not present any evidence that drugs affected his mental state at the time of the murder. Further, it was mere speculation that the two prospective jurors Vansickel wanted to put on the jury would ever have been sworn. Finally, the appellate court concluded that the overwhelming evidence against Vansickel supported the conclusion that no miscarriage of justice occurred. The California Supreme Court denied review. Vansickel then filed state habeas petitions in the California Court of Appeal and in the California Supreme Court. Both courts denied the petitions. He then filed his federal habeas petition in the district court.

The district court determined that the trial court's improper denial of peremptory challenges violated Vansickel's due process rights. However, the court concluded that the claim was procedurally barred because Vansickel failed to make a timely objection in state court. Therefore Vansickel had to demonstrate cause and prejudice. The district court concluded that defense counsel's failure to object to a limit of ten peremptories did not establish cause, and that Vansickel could not establish prejudice because there was no basis to infer that the result of Vansickel's trial would have been different had he been given his full complement of peremptory challenges. 2

A. Due Process Violation

The first issue we address is whether denial of peremptory challenges provided for by a state statute violates a state criminal defendant's federal constitutional rights.

The Supreme Court has stated that "peremptory challenges are not of constitutional dimension." Ross v. Oklahoma, 487 U.S. 81, 88, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988). In Ross, the Court held that the erroneous denial of a challenge for cause that required defense counsel to use a peremptory challenge did not violate the Sixth Amendment. The Court concluded that peremptory challenges are a creature of statute, not required by the Constitution, and "[a]s such, the 'right' to peremptory challenges is 'denied or impaired' only if the defendant does not receive that which state law provides." Id. at 89, 108 S.Ct. 2273.

In United States v. Martinez-Salazar, 146 F.3d 653 (9th Cir.1998), we held that Ross did not foreclose a Fifth Amendment challenge to a wrongful denial of a peremptory challenge. Id. at 657-58. There, we concluded that the erroneous denial of peremptory challenges provided for by federal law violated a defendant's Fifth Amendment right to due process in a federal prosecution. Id. at 658. We distinguished our holding from earlier decisions of this court that concluded the impairment of a defendant's use of peremptory challenges...

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