                    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, Warden of
 the Central California Women’s                   OPINION
 Facility in Chowchilla,
               Respondent-Appellee.


      On Remand from the United States Supreme Court

                         Filed May 27, 2016

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

                  Opinion by Judge Kozinski;
                  Dissent by Judge Reinhardt




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

                           SUMMARY**


                          Habeas Corpus

    On remand from the United States Supreme Court, the
panel affirmed the district court’s order denying habeas relief
to Tara Williams, who asserted that the trial court’s dismissal
of a holdout juror during deliberations in her California
murder trial violated her Sixth Amendment rights.

    The panel reviewed the Sixth Amendment claim under the
standard set forth in AEDPA.

    The panel held that because the trial court’s evidentiary
hearing focused on the issue of juror bias, not on the nature
of the jury’s division, the process employed by the trial judge
was not contrary to, nor an unreasonable application of,
Supreme Court authority.

    The panel held that Williams is not entitled to habeas
relief on the theory that there is a reasonable probability the
juror was excused because of his views as to guilt or
innocence, where Williams has not cited any Supreme Court
case imposing the rule set forth in United States v. Symington,
195 F.3d 1080 (9th Cir. 1999) – that the dismissal of a juror
violates the Sixth Amendment when it is reasonably possible
that the impetus for the juror’s dismissal came from her
position on the merits of the case – and the panel is unaware
of such a Supreme Court case.


  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   WILLIAMS V. JOHNSON                        3

    The panel held that the state appellate court’s finding that
the juror was biased because he would not follow the law was
not an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. The panel
explained that the fact that the state appellate court’s finding
may have departed from those of the trial court is irrelevant.

    Dissenting, Judge Reinhardt wrote that the state appellate
court’s finding that the trial court dismissed the holdout juror
for being unwilling to follow the law was based on an
unreasonable determination of the facts and thus warrants
relief under AEDPA.


                         COUNSEL

Kurt David Hermansen, Law Office of Kurt David
Hermansen, San Diego, California, and Steven M. Klepper,
Kramon & Graham, P.A., Baltimore, Maryland, for
Petitioner-Appellant.

Kamala D. Harris, Attorney General of California, Gerald
Engler, Chief Assistant Attorney General, Lance E. Winters,
Senior Assistant Attorney General, Xiomara Costello and
Stephanie C. Brenan, Deputy Attorneys General, Los
Angeles, California, for Respondent-Appellee.
4                  WILLIAMS V. JOHNSON

                         OPINION

KOZINSKI, Circuit Judge:

    During deliberations in the California murder trial of Tara
Williams, the court dismissed a juror who was holding out for
acquittal. An alternate juror was seated, and the jury
convicted. We consider whether Williams is entitled to
habeas relief on the ground that the dismissal of the holdout
juror violated her Sixth Amendment rights.

        FACTS AND PROCEDURAL HISTORY

    In the fall of 1993, Williams drove two of her friends
around Long Beach, casing stores for a potential robbery.
Williams eventually stopped at a liquor store. While
Williams and her infant son waited in the car, her two friends
went inside, murdered the store owner and robbed the cash
register of $6 and food stamps. Williams was later charged
with felony murder.

    After the jury retired, the foreman sent a note claiming
that one juror had “expressed an intention to disregard the
law.” Judge Richard R. Romero and counsel questioned
Juror 6, who admitted he had discussed jury nullification and
the severity of the charge during deliberations. Judge
Romero then questioned the other jurors, many of whom
reported that Juror 6 had exhibited an unwillingness to follow
the law because he disagreed with the felony murder rule and
with the principle of vicarious liability. After hearing brief
arguments from each side, Judge Romero said: “I’m going to
dismiss [Juror 6], but not because he’s not deliberating and
not because he’s not following the law.” Although Judge
Romero stated that Juror 6 was “dismissed without any
                   WILLIAMS V. JOHNSON                       5

question in my mind as a biased juror,” he also stated that
“not following the law is not a basis for his dismissal.” Judge
Romero found that Juror 6 was biased because he was
dishonest, was concerned with the severity of the charge and
was “add[ing] his own words to the court’s instructions as to
what the law is.” The judge then seated an alternate and the
jury convicted the following day. Williams was sentenced to
life in prison without the possibility of parole.

    Williams argued on direct appeal that the dismissal of
Juror 6 violated both her Sixth Amendment rights and the
state statute governing juror dismissals. See Cal. Penal Code
§ 1089. The California Court of Appeal affirmed and the
Supreme Court of California denied review. Williams
unsuccessfully sought habeas relief in the California courts
and eventually in federal district court.

    We reversed. Williams v. Cavazos, 646 F.3d 626, 653
(9th Cir. 2011). Because the state appellate court had focused
on the state statute and did not address the merits of
Williams’s Sixth Amendment claim, we held that the federal
claim had not been “adjudicated on the merits in State court”
for the purposes of the Antiterrorism and Effective Death
Penalty Act (AEDPA). Id. at 636 (quoting 28 U.S.C.
§ 2254(d)). We therefore reviewed the federal claim de novo
and held that the dismissal of Juror 6 violated Williams’s
Sixth Amendment rights. Id. at 642–52.

    The Supreme Court reversed, holding that, “[w]hen a state
court rejects a federal claim without expressly addressing that
claim, a federal habeas court must presume that the federal
claim was adjudicated on the merits.” Johnson v. Williams,
133 S. Ct. 1088, 1096 (2013). The Court concluded that “the
restrictive standard of review set out in § 2254(d)(2)”—not de
6                     WILLIAMS V. JOHNSON

novo review—“applies, and that under that standard
[Williams] is not entitled to habeas relief.” Id. at 1092.

     On remand, we entered a brief order affirming the district
court’s denial of the habeas petition, as the Supreme Court
had instructed. Williams v. Johnson, 720 F.3d 1212, 1212
(9th Cir. 2013) (per curiam). But see id. at 1212 (Reinhardt,
J., concurring); id. at 1214 (Kozinski, C.J., concurring). The
Supreme Court vacated our order and instructed us to review
the merits of Williams’s Sixth Amendment claim “under the
standard set forth in 28 U.S.C. § 2254(d).” Williams v.
Johnson, 134 S. Ct. 2659, 2659 (2014) (per curiam). So here
we are.

                          DISCUSSION

    Under AEDPA, we may not grant habeas relief unless the
last reasoned opinion of the state courts1 either “(1) resulted
in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d).

   Williams advances three Sixth Amendment theories,
which we consider in turn.




    1
   As the Supreme Court has indicated, the last reasoned decision of the
state courts is the January 13, 2002 decision of the California Court of
Appeal. Johnson, 133 S. Ct. at 1097–98; see Ylst v. Nunnemaker,
501 U.S. 797, 804 (1991).
                   WILLIAMS V. JOHNSON                      7

                              I

     Williams first argues that the trial court’s inquiry into
potential juror bias violated the Sixth Amendment by
impermissibly intruding on jury deliberations. Williams cites
two Supreme Court cases holding that a trial judge may not
recall the jury from its deliberations to inquire about the
nature and extent of its division. Brasfield v. United States,
272 U.S. 448, 449–50 (1926); Burton v. United States,
196 U.S. 283, 307–08 (1905). Neither case is on point. The
trial court’s evidentiary hearing in this case focused on the
issue of juror bias, not on the nature of the jury’s division.
The Supreme Court has expressly endorsed the use of
evidentiary hearings to ferret out juror bias. See Smith v.
Phillips, 455 U.S. 209, 215 (1982). The process employed by
the trial judge was not contrary to, nor an unreasonable
application of, Supreme Court authority. See 28 U.S.C.
§ 2254(d)(1); see also Bell v. Uribe, 748 F.3d 857, 866–67
(9th Cir. 2014) (denying a similar claim for habeas relief).

                             II

     Next, Williams argues that there is a reasonable
probability that Juror 6 was excused because of his views as
to guilt or innocence. Our previous opinion granted relief on
this theory. Cavazos, 646 F.3d at 646–47. We relied on
United States v. Symington, a Ninth Circuit case holding that
the dismissal of a juror violates the Sixth Amendment when
it is “reasonably possible that the impetus for [the juror’s]
dismissal came from her position on the merits of the case.”
195 F.3d 1080, 1088 (9th Cir. 1999).

   Because the Supreme Court has held that AEDPA
governs this case, we may not rely on circuit precedent when
8                   WILLIAMS V. JOHNSON

adjudicating Williams’s federal claim. See Glebe v. Frost,
135 S. Ct. 429, 431 (2014) (per curiam). Instead, we may
grant relief only if the state court’s decision “was contrary to,
or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1) (emphasis
added). Williams has not cited any Supreme Court case
imposing (or even hinting at) the Symington rule. Nor are we
aware of such a case. See Johnson v. Williams, 133 S. Ct. at
1098 (noting that Symington “do[es] not bind” the California
courts “when [they] decide[] a federal constitutional
question”). Williams is not entitled to habeas relief on this
theory. See Brewer v. Hall, 378 F.3d 952, 957 (9th Cir.
2004) (holding that a habeas petitioner’s reliance on
Symington was “misplaced” because “Symington is not a
Supreme Court case” and because Symington’s analysis was
based on the Federal Rules of Criminal Procedure rather than
the Sixth Amendment).

                              III

   Williams’s final argument is that the state appellate court
unreasonably approved the dismissal of Juror 6 for bias.

    Supreme Court case law in the area of juror bias is sparse.
Although we know that biased jurors may be dismissed from
deliberations without offending the Constitution, we don’t
know precisely what it means for a juror to be biased. See
United States v. Wood, 299 U.S. 123, 146 (1936) (noting that
“the Constitution lays down no particular tests” for juror
bias). However, we do know that a juror is biased if he is
unwilling to follow the law. See Wainwright v. Witt,
469 U.S. 412, 423 (1985) (noting that jurors lacking
impartiality may be excused as biased and defining an
                   WILLIAMS V. JOHNSON                        9

impartial juror as one “who will conscientiously apply the
law”); Irvin v. Dowd, 366 U.S. 717, 723 (1961) (defining an
“impartial juror” as one who “can lay aside his impression or
opinion and render a verdict based on the evidence”).

    Williams argues that she is entitled to relief under
28 U.S.C. § 2254(d)(1) because the state appellate court
unreasonably applied Supreme Court case law when it
concluded that Juror 6 was biased without finding that Juror
6 would not follow the law. We reject Williams’s argument
because the state appellate court did find that Juror 6 was
biased because he would not follow the law. As Williams
noted in her earlier briefing, “[t]he California Court of Appeal
made three factual findings” in affirming the trial court’s
decision that Juror 6 was biased. One of those findings was
that, “[a]ccording to most of the jurors, Juror No. 6 had either
explicitly said he would not follow the law or he had implied
as much.”

    The state appellate court’s finding that Juror 6 was biased
because he would not follow the law was not “an
unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). During the evidentiary hearing, Jurors 2, 3, 5,
7, 8, 9, 10 and 11 told Judge Romero that Juror 6 had
expressed an unwillingness to follow the law. Jurors 3, 5, 10
and 11 said that Juror 6 was applying a burden of proof
higher than “beyond a reasonable doubt” when analyzing the
evidence.     Considering these comments, it was not
unreasonable for the state appellate court to find that Juror 6
was biased. See Woodford v. Visciotti, 537 U.S. 19, 24
10                     WILLIAMS V. JOHNSON

(2002) (per curiam) (AEDPA “demands that state-court
decisions be given the benefit of the doubt”).2

    Williams argues in her supplemental briefing that the
state appellate court’s decision unreasonably determined the
facts because it “overlooked” or contradicted several of Judge
Romero’s statements. Williams notes that Judge Romero
expressly declined to find that Juror 6 would not follow the
law. She claims that the state appellate court “misunderstood
the trial court’s ruling” and is therefore not entitled to
AEDPA deference.

    We do not review the state courts’ last reasoned decision
to ensure that it is consistent with the findings of the lower
state courts; rather, we review the last reasoned decision to
determine whether it reasonably determined the facts “in light
of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(2); see Uribe, 748 F.3d at 866 (denying
habeas relief under section 2254(d)(2) because “the
California Court of Appeal did not unreasonably interpret the
facts presented in the state court proceeding when issuing its
decision” on whether the removal of a juror violated the Sixth

  2
    The state appellate court also supported its finding of bias by noting
that Judge Romero “was entitled to consider Juror No. 6’s demeanor while
being examined, and could properly come to the conclusion that he had
been dishonest.” Our previous opinion concluded on de novo review that
the record did not support the finding that Juror 6 was dishonest. Cavazos,
646 F.3d at 651–52. We need not decide whether the state courts’ finding
that Juror 6 was dishonest constitutes an unreasonable determination of
the facts. Even if Juror 6 was honest, it was still reasonable for the state
appellate court to conclude that he was unwilling to follow the law. That
alone was a sufficient ground for finding Juror 6 biased. See supra pages
9–10. Thus, the state appellate court’s finding of bias is reasonable when
viewed in the context of “the record in total.” See Cook v. LaMarque,
593 F.3d 810, 826 (9th Cir. 2010).
                      WILLIAMS V. JOHNSON                             11

Amendment). AEDPA requires us to defer to state court
findings made for the first time by the appellate court, cf.
Sumner v. Mata, 449 U.S. 539, 547 (1981), even when such
findings contravene those of the trial court. See Amado v.
Gonzalez, 758 F.3d 1119, 1132–33 (9th Cir. 2014); Dickerson
v. Vaughn, 90 F.3d 87, 90 (3d Cir. 1996). The state appellate
court was entitled to make its own factual findings,
unconstrained by what the trial court did. Even if Judge
Romero did not find that Juror 6 was unwilling to follow the
law, the state appellate court did make such a finding. As we
have already explained, that finding was reasonable. Thus,
the fact that the state appellate court’s findings may have
departed from those of the trial court is irrelevant.3 Federal
habeas courts enforce reasonableness, not concordance.

                  *                 *                *

     We don’t approve of what the trial court did in this case.
Our rule in Symington is preferable. But this is not a direct
appeal, and we are not permitted to second-guess state-court
judges because we might have reached a different result in the
first instance. Given AEDPA’s preternaturally deferential

 3
   There may not be any meaningful difference between Judge Romero’s
statement that he was not dismissing Juror 6 “because he is not following
the law,” and the state appellate court’s determination that Juror 6 “had
either explicitly said he would not follow the law or he had implied as
much.” Judge Romero’s list of reasons for concluding that Juror 6 was
biased included Juror 6’s concern or disagreement with the burden of
proof, the severity of punishment and the felony murder rule. Judge
Romero appears to have concluded that, although Juror 6 had not yet done
so, he had a propensity to disregard the law where it conflicted with his
opinions. The findings of the state trial and appellate courts can thus be
read in harmony: Both courts could reasonably have concluded that, had
Juror 6 been permitted to return to deliberations, he would not have
followed the law.
12                  WILLIAMS V. JOHNSON

standard of review, the district court’s order denying habeas
relief must be AFFIRMED.



REINHARDT, Circuit Judge, dissenting:

    Tara Williams is in prison for life following her
conviction of murder after a California state trial judge
dismissed a lone holdout juror who favored acquittal, and the
state appellate court affirmed that dismissal. The majority
now affirms, holding that the state appellate court’s finding
that the trial judge dismissed the holdout juror for being
unwilling to follow the law was not subject to reversal under
§ 2254 of AEDPA.

    There is one problem, however—the trial court did not
dismiss Williams for being unwilling to follow the law. To
the contrary, the trial court’s reasoning is plain: “I’m going to
dismiss the juror, but not because he’s not deliberating and
not because he’s not following the law” (emphasis added).
Although the trial judge explicitly stated that he did not
dismiss the juror for being unwilling to follow the law, and
although there is no reason to doubt this statement, the state
appellate court found the direct opposite—that the trial court
dismissed the holdout juror for being unwilling to follow the
law—and based its affirmance primarily on that finding. The
appellate court’s finding was clearly “based on an
unreasonable determination of the facts” and thus warrants
reversal under AEDPA. 28 U.S.C. § 2254(d)(2).

    Despite the clear factual error, the majority has been
persuaded that it must deny relief. The majority analyzes
testimony from various other jurors that it contends shows
                    WILLIAMS V. JOHNSON                       13

that the holdout juror was unwilling to follow the law. The
trial court, however, clearly did not agree. Although it had
the benefit of hearing directly all of the evidence that the
majority cites, it unequivocally refused to find that the
holdout juror was unwilling to follow the law. That the trial
court could have come to a different conclusion does not cure
the state appellate court’s unreasonable finding as to the trial
court’s reason for removing the holdout juror.

     Recognizing the conflict between the state appellate and
trial court’s findings, the majority contends that, under
AEDPA, “the appellate court was entitled to make its own
factual findings, unconstrained by what the trial court did”
and that “the fact that the state appellate court’s findings may
have departed from those of the trial court is irrelevant.” In
other words, the majority holds that, under AEDPA, it was
not unreasonable for the appellate court to make the factual
finding that the trial judge dismissed the holdout juror for
being unwilling to follow the law, and we should therefore
defer to the appellate court’s finding, contrary as it was to the
trial judge’s unambiguous statement.

    The majority is wrong. Although AEDPA, as interpreted
by the Supreme Court, may create its own topsy-turvy world
of constitutional reality, it does not go so far as to allow
words to have the direct opposite meaning of what they are
commonly understood to have and of the meaning that was
clearly intended by the speaker. Here, the key word is
“not”—that is, the trial judge explicitly stated that he was not
removing the holdout juror because he was unwilling to
follow the law. Contrary to what the state appellate court
found, “not” simply does not mean its opposite—the
affirmative. AEDPA, however puzzling it may be from a
constitutional standpoint, does not transform judges into
14                  WILLIAMS V. JOHNSON

Humpty Dumpties; we cannot make a word “mean[] just what
[we] choose it to mean . . . .” Lewis Carroll, Alice in
Wonderland and Through the Looking Glass 238 (1994). No
matter how “very clever [a Court of Appeal may be] at
explaining words,” id. at 239, there is simply no way an
appellate court can reasonably find that the trial judge did
what he clearly did not do.

    The majority next contends that, under AEDPA, we owe
deference to the factual findings of the state appellate court
even when those findings directly contradict the trial court’s.
That is not true, however, when the finding at issue is the trial
court’s reason for dismissing a juror. Under the Sixth
Amendment, the harm occurs when the judge violates the
integrity of the jury by removing without good cause a
holdout juror who favors acquittal. See Duncan v. Louisiana,
391 U.S. 145, 156 (1968) (stating that the Sixth Amendment
was designed in part to protect the integrity of the jury against
an abuse of power by a “compliant, biased, or eccentric
judge”). Given that the factual question is why the trial court
dismissed a juror, it is unreasonable for an appellate court to
contradict the reason the trial court gave for that
dismissal—unless there is cause to suspect that the trial
court’s stated reason was pretextual. There is no cause for
such suspicion here, and no judge, even the majority, has
suggested that there is. Indeed, the trial court could not
possibly have had an ulterior motive for disclaiming the one
reason for dismissal that the Supreme Court has explicitly
endorsed—a juror’s unwillingness to follow the law. See
Maj. Opinion, supra, at 8–9; see also Wainwright v. Witt,
469 U.S. 412, 424 (1985).

    The practical implications of the majority’s decision to
the contrary are truly remarkable. Under the majority’s
                     WILLIAMS V. JOHNSON                          15

theory, the trial judge could have announced to the entire
courtroom that he was removing the juror because the juror
was wrong to believe that the defendant was not guilty, and
it still would not have mattered as long as the appellate court
somehow found that such was not the reason for his doing so.
This stretches the Sixth Amendment beyond all permissible
bounds, even in AEDPA land.

    In sum, the state appellate court found that the state trial
court dismissed the holdout juror because he was unwilling
to follow the law even though the trial court expressly
rejected that reason. That is an unreasonable finding of fact.

                               ***

    I, like the majority, “don’t approve of what the trial court
did in this case.” In our prior unanimous opinion1, we
analyzed each of the possible reasons for the trial judge’s
removal of the holdout juror, and concluded that he did not
have any constitutionally valid reason for his action. The
Supreme Court reversed our decision, but not because it
found anything wrong with our analysis. Rather, it ordered
us not to analyze the trial court’s possible reasons de novo but
to look at them through the deferential lens of AEDPA.
Looking through that lens, however, does not tell us whether
a constitutional violation occurred but only whether a state
court was unreasonable in deciding that it didn’t. Although
under AEDPA we are precluded from reversing a state court
in the absence of an unreasonable factual finding or an
unreasonable application of clearly established Supreme
Court law, we are not prohibited, even in the absence of those

  1
    Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011), rev’d sub nom.
Johnson v. Williams, 133 S. Ct. 1088 (2013).
16                 WILLIAMS V. JOHNSON

circumstances, from recognizing that a constitutional
violation occurred. We did so in our earlier opinion when we
held that there was no valid reason for the judge’s removal of
the juror, and that analysis remains correct today.

    The California trial judge’s dismissal of a holdout juror
without cause is not an anomaly. In the last five years,
California appellate courts have repeatedly reversed trial
judges out of concern that the trial judge compromised the
integrity of the jury by removing a holdout juror without good
cause or pressuring a juror to change his view of the
evidence. See People v. Hughes, 2016 WL 298793 (Cal. Ct.
App., Jan. 25, 2016); People v. Siegfried, 2015 WL 9260925
(Cal. Ct. App., December 17, 2015); People v. Salazar, 2015
WL 1417034 (Cal. Ct. App. Mar. 26, 2015); People v.
Vasquez, 2013 WL 6154583 (Cal. Ct. App. Nov. 25, 2013);
People v. Perez, 2013 WL 5779040 (Cal. Ct. App. Oct. 25,
2013); People v. Olmos, 2011 WL 5041962 (Cal. Ct. App.
Oct. 25, 2011); People v. Barilo, 2011 WL 3242009 (Cal. Ct.
App. July 29, 2011); People v. Villa, 2011 WL 1366482 (Cal.
Ct. App. Apr. 12, 2011).             Even under AEDPA’s
extraordinarily deferential standard of review, this court also
has found on a number of occasions over the past fifteen
years that a California trial judge improperly coerced or
removed a holdout juror. See, e.g., Sanders v. Lamarque,
357 F.3d 943, 950 (9th Cir. 2004); Smith v. Curry, 580 F.3d
1071, 1085 (9th Cir. 2009); Wilson v. California State
Attorney General, 120 Fed. App’x 658, 659 (9th Cir. 2004).

    This trend is troubling. Although the vast majority of
California judges are fair and impartial, courts must not
without good cause remove holdout jurors in the midst of
deliberations. Even if a judge is convinced beyond all doubt
that a defendant committed a crime, we have made the
                   WILLIAMS V. JOHNSON                      17

fundamental choice that a jury of the defendant’s peers, and
that jury alone, retains the right to declare his guilt or
innocence. This choice is meaningless, however, when a
judge may frustrate the fundamental integrity of the jury
system by removing without cause the lone holdout juror
favoring acquittal. While trial judges have a legitimate
concern about efficiency on the basis of their heavy dockets,
such a concern must not override a defendant’s constitutional
rights. I fear that is what occurred here and that our decision
makes it more likely that it will happen again.

   For the foregoing reasons I respectfully dissent.
