                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JAN 31 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

FERRARI MOODY,                                   No. 10-55842

              Petitioner - Appellant,            D.C. No. 2:06-CV-06557-GHK-
                                                 VBK
  v.

KEVIN CHAPPELL, Warden;                          MEMORANDUM*
CALIFORNIA DEPARTMENT OF
CORRECTIONS AND
REHABILITATION,

              Respondents - Appellees.


                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                     Argued and Submitted December 2, 2013
                              Pasadena, California

Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.

       Ferrari Moody (“Moody”) appeals the dismissal of his federal habeas

petition with prejudice. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we

affirm.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court did not err in dismissing Moody’s claim that the state trial

court denied him his due process right to a fair trial by an impartial jury.

      Jury tampering is “an effort to influence the jury’s verdict by threatening or

offering inducements to one or more of the jurors.” United States v. Dutkel, 192

F.3d 893, 895 (9th Cir. 1999). “In a criminal case, any private communication,

contact, or tampering directly or indirectly, with a juror during a trial about the

matter pending before the jury is, for obvious reasons, deemed presumptively

prejudicial[.]” Remmer v. United States, 347 U.S. 227, 229 (1954). Here,

however, the contact the spectators made with Juror No. 7 did not concern the

criminal trial pending before the jury, id. at 229, nor did it involve coercion,

bribery, threats or inducements, Dutkel, 192 F.3d at 895, 897. Moreover, Juror

No. 7 did not know who the spectators were, or if they were “friends” with Moody

or the victim.

      Thus, in denying this claim, the state court did not apply clearly established

federal law in an objectively unreasonable manner. Williams v. Taylor, 529 U.S.

362, 412 (2000); 28 U.S.C. § 2254(d)(1). Nor did the state court unreasonably

determine the facts in light of the evidence presented in the state court proceeding.

28 U.S.C. § 2254(d)(2); see also Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.

2004) (“[I]t is not enough that we could reverse in similar circumstances if this


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were an appeal from a district court decision. Rather, we must be convinced that

any appellate panel, applying the normal standards of appellate review, could not

reasonably conclude that the finding is supported by the record.”). “A state court’s

determination that a claim lacks merit precludes federal relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.”

Harrington v. Richter, 131 S.Ct. 770, 786 (2011) (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664 (2004)). That is the case here.

      The district court also did not err in dismissing Moody’s ineffective

assistance of counsel claims. Even if counsel erred, Moody has not shown “a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,

694 (1984).

      Because we affirm the dismissal of the petition on the merits, we need not

reach the issue of procedural default. Franklin v. Johnson, 290 F.3d 1223, 1232

(9th Cir. 2002).

      AFFIRMED.




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                                                                                 FILED
Moody v. Chappell, No. 10-55842                                                   JAN 31 2014

                                                                             MOLLY C. DWYER, CLERK
WARDLAW, Circuit Judge, dissenting:                                            U.S. COURT OF APPEALS



      I respectfully dissent. I disagree with the majority’s conclusion that no jury

tampering occurred in this case. Accordingly, I would reverse the district court’s

denial of Moody’s habeas petition.1

      The majority affirms the district court’s dismissal of Moody’s habeas

petition, which alleged a violation of his due process right to a fair trial by an

impartial jury. However, this is a clear case of jury tampering. It is undisputed

that Juror No. 7 was followed on her way home from the courthouse by two men,

who she recognized had been seated in the gallery that day. She reported to the

court that the two men shouted at her to try and get her attention when they pulled

up next to her at a red light. The juror altered her route home, and she stated that

the experience “made [her] very uncomfortable.” Those two men were allowed to

stay in the gallery for the remainder of the trial. In addition, Juror No. 7 stated that

the same two men who followed her from court “had been trying to talk to people

when we were outside,” meaning that the men had attempted to speak with other

jurors. When pressed by the court, she concluded that she could be “fair to the


      1
        I agree with the majority’s conclusion regarding Moody’s ineffective
assistance of counsel claims.

                                           1
guy” in her decision-making process, but she also said, “I think having them here, I

might feel uncomfortable in general. I might not be able to sit still because just

knowing that they’re here and they know who I am.” Despite the prosecutor’s

repeated requests that the court interview the whole jury to determine the extent of

any potential tampering, the court refused.

      Jury tampering is “presumptively prejudicial,” Remmer v. United States, 347

U.S. 227, 229 (1954), and these events are a prima facie example of jury

tampering. The majority concludes that no jury tampering occurred in this case

because the contact did not concern the matter pending before the jury, the contacts

did not involve coercion, bribery, threats or inducements, and Juror No. 7 did not

know with whom the men who followed her home were associated. These

conclusions involve not only a strained reading of the facts, but also require the

majority to ignore the law.

      Relying explicitly upon Remmer, we have found jury tampering based on

contacts far more innocuous than those experienced by Juror No. 7. In United

States v. Simtob, for example, we found jury tampering where the defendant had

merely been “eye-balling” a juror during trial. We held:

      Despite the lack of evidence that Simtob had any direct contact with the
      jury, the presumption of prejudice applies here because even indirect
      coercive contacts that could affect the peace of mind of the jurors could

                                          2
      give rise to the Remmer presumption. That at least one juror’s peace of
      mind was affected is obvious from the district court’s assertion that the
      juror claimed he or she felt threatened by Simtob. The Government,
      therefore, bears the burden of rebutting the presumption of prejudice.

485 F.3d 1058, 1064 (9th Cir. 2007) (internal citations and quotation marks

omitted)). If “eye-balling” constitutes a threat, then the actions of the spectators in

the gallery of following Juror No. 7 home and shouting at her did as well.

      Second, as our cases applying Remmer make clear, juror tampering requires

neither that a juror know which party is responsible for the tampering nor that the

threatening behavior explicitly reference the outcome of the case. In United States

v. Dutkel, 192 F.3d 893, 898-99 (9th Cir. 1999), we held that a co-defendant’s

bribery and coercion of a juror as to the co-defendant’s case alone was prima facie

jury tampering with respect to Dutkel as well, even though during the coercion of

the juror, the co-defendent’s henchmen specifically stated, “We don’t care about

Dutkel.” Id. at 897. The coercion in that case was explicitly divorced from the

outcome of Dutkel’s trial, and yet we found jury tampering had occurred because

the “intervention interfered with the jury’s deliberations by distracting one or more

of the jurors, or by introducing some other extraneous factor into the deliberative

process.” Id.

      Dutkel was not an outlier case; rather, it flowed from a line of cases applying



                                           3
Remmer in the jury tampering context. In Dutkel we relied upon our holding in

United States v. Angulo, 4 F.3d 843 (9th Cir. 1993), for the proposition that “even

indirect coercive contacts that could affect the peace of mind of the jurors give rise

to the Remmer presumption.” 192 F.3d at 897. The contact in Angulo involved

nothing more than an anonymous phone call to one of the jurors in which the caller

said, “I know where you live.” 4 F.3d at 846. The caller never identified himself

and never mentioned the “matter pending before the jury” on which the juror

served. Id. Even though there were no facts tying the call to the case, the trial

judge made the obvious connection between the phone call and the juror’s service,

stating, “[p]eople don’t go through life receiving calls like this . . . and the most

logical activity for you to tie it up with is jury duty.” Id. at 847. So too, a woman

does not often go through life having two strange men, who had been sitting in the

gallery during trial, follow her on her way home and repeatedly attempt to get her

attention. Juror No. 7 made the obvious connection between her jury service and

the men who followed her home as evidenced by her decision to report the incident

to the judge. It is inconceivable that the trial court—and the panel

majority—cannot.

      Even after the trial court in Angulo properly dismissed the juror who had

received the phone call, we concluded that the contact at issue gave rise to the

                                           4
Remmer presumption because the trial judge never explained the juror’s absence to

the other jurors and the other jurors knew of the phone call. Id. at 847. If second-

hand knowledge of a phone call in which the caller did not identify which party he

represented and failed to mention the juror’s case gives rise to the Remmer

presumption, then surely the contact directly experienced by Juror No. 7 warrants

the same. Moreover, the trial court in this case never examined Juror No. 7 to find

out whether she had told other jurors about the experience, nor did it admonish her

not to do so.

      Jury tampering is “presumptively prejudicial,” Remmer, 347 U.S. at 229, and

places “a heavy burden on the government to rebut the presumption by proving

that the error was harmless beyond a reasonable doubt.” United States v.

Rutherford, 371 F.3d 634, 641 (9th Cir. 2004); see also Remmer, 347 U.S. at 229

(“[T]he burden rests heavily upon the Government to establish, after notice to and

hearing of the defendant, that such contact with the juror was harmless to the

defendant.”).

      The state courts either unreasonably determined the facts in light of the

evidence presented in the state court proceeding or applied clearly established

federal law in an objectively unreasonable manner. Because the state courts

summarily denied Moody’s habeas petitions, it is unclear which of these errors

                                          5
occurred. If on the one hand, the state courts determined that this was not jury

tampering, then they unreasonably determined the facts, even if they did apply the

correct law. If on the other hand, the state courts concluded based on the facts that

jury tampering occurred, then it is just as evident that they have applied clearly

established federal law in an objectively unreasonable manner. Remmer, decided

in 1954, holding that jury tampering is presumptively prejudicial, is about as

clearly established as federal law can be. As such, the government must meet the

burden of proving that contact with the juror was harmless. This has not and

cannot be done. Either scenario warrants federal habeas relief.




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