                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 TARA SHENEVA WILLIAMS,                           No. 07-56127
              Petitioner-Appellant,
                                                    D.C. No.
                     v.                           CV-03-02691-
                                                      GW
 DEBORAH K. JOHNSON , Acting
 Warden of the Central California
 Women’s Facility in Chowchilla,                     ORDER
 California,
               Respondent-Appellee.


    On Remand From The United States Supreme Court

                          Filed July 3, 2013

  Before: Alex Kozinski, Chief Judge, Stephen Reinhardt,
   Circuit Judge, and Ronald M. Whyte, Senior District
                         Judge.*

                          Order
              Concurrence by Judge Reinhardt;
            Concurrence by Chief Judge Kozinski




 *
   The Honorable Ronald M. W hyte, Senior U.S. District Judge for the
Northern District of California, sitting by designation.
2                  WILLIAMS V . JOHNSON

                           ORDER

PER CURIAM:

    In accordance with the Supreme Court’s opinion of
February 20, 2013 as well as the resulting judgment, and
taking note of the denial of a petition for rehearing on April
15, 2013, the district court’s denial of Williams’s habeas
petition is

    AFFIRMED.



REINHARDT, Circuit Judge, concurring:

    I agree that we are likely required to deny Tara
Williams’s habeas petition. I write to provide the parties, to
the extent possible, an explanation of why we hold that our
authority to address this question has been foreclosed by the
Supreme Court.

    The Supreme Court’s opinion, on its face, creates
substantial uncertainty as to this court’s duty on receiving the
mandate on remand, and specifically whether it remains open
for us to decide Williams’s petition under the restrictive
AEDPA standard of review—in short, to answer the question
whether her conviction violated the Constitution. At the end
of the introduction to the Supreme Court’s opinion, it states
that Williams’s federal constitutional claim had been
adjudicated on the merits in the state court, and therefore that
the restrictive AEDPA standard of review applies to her
habeas petition. It goes further, however, and states without
explanation “that under that standard respondent is not
                    WILLIAMS V . JOHNSON                       3

entitled to habeas relief.” Johnson v. Williams, 133 S. Ct.
1088, 1091–92 (2013).

    The last sentence of the introduction is the only mention
in the entire opinion of whether or not Williams is entitled to
habeas relief—that is, whether her conviction was
unconstitutional. There is no discussion elsewhere as to why
Williams does not merit such relief under AEDPA, and
specifically whether the trial judge’s actions in dismissing the
lone holdout juror at Williams’s trial violated the Sixth
Amendment, or whether the trial judge made a clearly
erroneous determination when he found that the juror was
biased. But for the one sentence in the introduction, it would
be fully consistent with the Court’s opinion for us to address
on remand the merits of Williams’s claim under AEDPA’s
deferential standard of review, or, in other words, to
determine whether she was entitled to relief under
AEDPA—the question that the Court failed to discuss in the
body of its opinion.

    Notably, the conclusion to the Court’s opinion omits any
suggestion that our consideration of this question should be
foreclosed. It states, “We think it exceedingly unlikely that
the California Court of Appeal overlooked Williams’s federal
claim, and the Ninth Circuit’s judgment to the contrary is
reversed. The case is remanded for further proceedings
consistent with this opinion.” Id. at 1099. It is particularly
difficult to reconcile the introduction and the conclusion
because if, as the introduction states, Williams “is not entitled
to habeas relief,” then, contrary to the direction in the
4                      WILLIAMS V . JOHNSON

conclusion, there would appear to be no “further
proceedings” possible.1

    Our duty on remand is even more unclear when the
procedural context of the Court’s opinion is considered. Our
opinion had adjudicated Williams’s petition for review under
a de novo standard; we therefore had not considered the
merits of Williams’s habeas claim under the more restrictive
AEDPA standard of review. The state’s petition for certiorari
had asked the Court to evaluate the merits, but the Court
specifically declined to grant certiorari as to that question and
thus limited its grant of certiorari to the question of the
applicable standard of review—a fact that the Court itself
noted in its opinion. Id. at 1094. The parties did not brief the
merits of the case before the Court; specifically, they did not
brief the appropriate result under the deferential AEDPA
standard. Further, at oral argument, the Court deliberately
declined to hear any discussion of the merits of Williams’s
case. When the topic arose, Justice Kennedy stated that the
Court “probably shouldn’t go there.” Tr. of Oral Arg. at 19.2

   Williams recognized the problem we discuss above, and
asked the Court in a petition for rehearing to “clarify[] that on
remand, she can continue to pursue habeas relief based on


  1
    It is correct, however, that our judgment, relying on our holding that
the state court did not decide the federal question, should, as the Court
states, be reversed, in light of the Court’s holding.

    2
   Several justices stated that they found the trial judge’s treatment of the
case “very troublesome” or leaving them “deeply troubled.” Tr. of Oral
Arg. at 18–19, 21. I strongly share their view that the trial judge’s actions
abrogated a central tenet of the right to a trial by jury— the inviolate
secrecy of jury deliberations— and deprived W illiams of the fair trial to
which she was entitled.
                   WILLIAMS V . JOHNSON                       5

alternative grounds that the Ninth Circuit did not reach below,
and on which th[e] Court declined to grant certiorari.” In
short, no party briefed, and the Court never considered,
whether the trial court’s error would survive the restrictive
AEDPA standard of review. All the Court held was that
AEDPA was the correct standard. Nevertheless, the Court
refused to grant Williams’s petition for rehearing, denying it
without comment.

    We are, of course, required to follow the mandate of the
Supreme Court. We are also required to assume that the
Court meant what it said in the introduction to its opinion, in
which it appears to have denied Williams’s habeas claim, and
that it fully considered the petition for rehearing when it
refused to reconsider its decision. Given the introduction to
the Court’s opinion, and particularly its denial of the petition
for rehearing, I believe that we have no option but to
conclude that the Court has deliberately precluded us from
considering the merits of Williams’s habeas petition under
AEDPA. Accordingly, uncomfortable as I am with that
result, I respectfully join my colleagues in denying
Williams’s petition.



Chief Judge KOZINSKI, concurring:

    Like Judge Reinhardt, I’m troubled by the Supreme
Court’s treatment of Williams’s Sixth Amendment claim.
Our confidence in the correctness of a guilty verdict in a
criminal case rests in large part on the fact that 12
individuals, fairly chosen, unanimously agree that the
defendant is guilty. In Williams’s case, there was a
significant departure from this objective process. As
6                   WILLIAMS V . JOHNSON

documented by the trial transcript, the Superior Court appears
to have removed a juror because he was holding out for
acquittal.

    As several Justices noted at oral argument in the Supreme
Court, such conduct by a trial judge is troubling. It cuts at the
heart of our adversary system and casts doubt on the resulting
verdict. If the trial judge may, during the course of
deliberations, delve into the thought process of the jurors and
remove those he disagrees with, our confidence in a
unanimous verdict is necessarily diminished.

     It’s not clear to me that the trial judge’s actions here
complied with clearly established Supreme Court precedent,
but I’m not sure, as we’ve never ruled on the issue. It’s thus
surprising that the Supreme Court should have done so,
particularly when it declined to have the question briefed, and
its opinion contains no analysis supporting its conclusion.
But, I have no doubt that that’s precisely what the Court did
in its opinion, Johnson v. Williams, 133 S. Ct. 1088, 1091–92
(2013), and it stood by that holding when it denied the
petition for rehearing.

   I hope I’m wrong, but can see no other way to read the
Court’s actions. Deference to the judicial hierarchy leaves
room for no other course of action on our part. But I take
comfort in knowing that, if we are wrong, we can be
summarily reversed.
