                           NOT FOR PUBLICATION                                           FILED
                    UNITED STATES COURT OF APPEALS                                            MAY 12 2020
                                                                                    MOLLY C. DWYER, CLERK
                                                                                     U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.            18-55939

                Plaintiff-Appellee,             D.C. Nos.           2:15-cv-03845-TJH
                                                                    5:08-cr-00128-TJH-1
 v.

CONSTANTINE PETER KALLAS,                       MEMORANDUM *              P0F   P




                Defendant-Appellant.

                   Appeal from the United States District Court
                       for the Central District of California
                   Terry J. Hatter, Jr., District Judge, Presiding

                             Submitted May 8, 2020**  P   1F   P




                               Pasadena, California

Before: M. SMITH and OWENS, Circuit Judges, and HUMETEWA,*** District                P   2F   P




Judge.

      Constantine Peter Kallas appeals the district court’s summary denial of his

28 U.S.C. § 2255 motion and subsequent Federal Rule of Civil Procedure 59(e)


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
              The Honorable Diane J. Humetewa, United States District Judge for
the District of Arizona, sitting by designation.
motion, seeking relief from his conviction for ineffective assistance of counsel and

juror misconduct.

      We have jurisdiction under 28 U.S.C. §§ 2255 and 1291. We review the

district court’s denial of a § 2255 motion de novo and the failure to hold an

evidentiary hearing for abuse of discretion. Frazer v. United States, 18 F.3d 778,

781 (9th Cir. 1994). When a prisoner files a § 2255 motion, the district court must

grant an evidentiary hearing “[u]nless the motion and the files and records of the

case conclusively show that the prisoner is entitled to no relief.” 28 U.S.C.

§ 2255. “Evidentiary hearings are particularly appropriate when ‘claims raise facts

which occurred out of the courtroom and off the record.’” United States v.

Chacon-Palomares, 208 F.3d 1157, 1159 (9th Cir. 2000) (quoting United States v.

Burrows, 872 F.2d 915, 917 (9th Cir. 1989)). We affirm in part and reverse in

part, and remand for further proceedings.

1.    Kallas alleges he received ineffective assistance of counsel because his trial

counsel, Dean Steward, misinformed him of the terms of a plea offer and the

penalties he would face if he proceeded to trial. To prevail on an ineffective

assistance claim, Kallas must show that his attorney’s advice during the plea

bargaining process “fell below an objective standard of reasonableness” and that

“but for counsel’s unprofessional errors, the result of the proceeding would have

been different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).


                                            2
      Kallas alleges that his trial counsel, Dean Steward, visited him in detention

on March 30, 2010, the day before his trial was to begin. Steward informed Kallas

of a last-minute plea offer, offering a sentence of 13–15 years. Kallas understood

this offer to be the maximum, or near-maximum, sentence he would face if he went

to trial. Kallas swore in an affidavit that, had he known that he faced over 29 years

in prison, he would have accepted the plea offer.

      The government denies that it ever offered Kallas a formal plea deal, “as

evidenced by the absence of a plea offer letter or plea agreement (whether in final

or draft form in the United States Attorney’s Office’s case files or in the computer

files of the [AUSAs] formerly assigned” to this case. The government made the

same representation in opposition to the § 2255 motion, but in a footnote stated

that at the time of filing it had not yet reviewed email correspondence to determine

whether a plea agreement was offered, and that it was unable to locate email files

related to this case from one of the formerly assigned AUSAs.

      In response to interrogatories propounded by the government, Steward stated

that he discussed the statutory maximum sentence with Kallas before arraignment

on the superseding indictment and reviewed the sentencing guidelines with him

before trial. But in its discovery requests, the government did not ask what

Steward told Kallas that maximum sentence was, and Steward did not recall

whether he told Kallas that he could be sentenced to serve the combined total of


                                          3
the applicable statutory maximum terms of imprisonment for each count of

conviction. Further, Steward did not recall whether he told Kallas he faced a

maximum of 15 years in prison, or whether the government offered a deal of 13–15

years. However, Steward did recall that, “after receiving a plea offer from the

prosecution,” and “explain[ing] what the government was proposing,” Kallas told

Steward not to bring him “any future plea offers. I am in this case to win.” The

government cited portions of these interrogatory responses in their opposition

below, but it now claims the documents “were inadvertently not filed with the

district court.” 1
                P3F   P




       Steward’s interrogatory responses tend to confirm that there was at least

some discussion of a plea offer, despite the government’s insistence

otherwise. See Chacon-Palomares, 208 F.3d at 1160 (“[T]he expansion of the

record introduced evidentiary support for Defendant’s claims from two new

witnesses, which only increased the need for a hearing.”). Furthermore, crediting

Kallas’s allegations, as we must, Baumann v. United States, 692 F.2d 565, 571 (9th

Cir. 1982) (“[T]he petitioner . . . must only make specific factual allegations

which, if true, would entitle him to relief.”), Kallas learned of the plea offer of a



       1
        We GRANT the government’s motion to supplement the record with
interrogatory responses. While ordinarily we would not consider evidence that
was not before the district court, the supplemental record supports our conclusion
that an evidentiary hearing was required here.

                                           4
maximum or near-maximum sentence on the eve of trial. Considering that

Steward’s interrogatory responses did not contradict Kallas’s affidavit, and that

those responses were not before the district court in their entirety, we are not

persuaded that Kallas’s allegations fail to state a claim or are “palpably incredible”

or “patently frivolous” such that an evidentiary hearing was not required. Shah v.

United States, 878 F.2d 1156, 1158 (9th Cir. 1989) (quoting Marrow v. United

States, 772 F.2d 525, 526 (9th Cir. 1985)).

      The government argues that, in any event, Kallas fails to show prejudice

because his statements that he did not want to hear of future plea deals and was “in

this case to win” show that, even with an accurate explanation of the plea offer and

maximum sentences, Kallas still would have gone to trial. Kallas has submitted a

sworn affidavit to the contrary. If, as Kallas alleges, he made that statement on the

eve of trial and the plea offer was what he understood at the time to be the

maximum sentence he faced at trial, we are not persuaded that those statements

conclusively establish that Kallas would have gone to trial if he had properly

understood the risk of substantially more prison time. Accordingly, we conclude

that the court abused its discretion by failing to hold an evidentiary hearing. We

reverse the district court’s order as to this claim and we remand for a hearing.

2.    Kallas further alleges trial counsel was ineffective by failing to object to a

courtroom closure during voir dire. “The Sixth Amendment guarantees a


                                          5
defendant the right to a public trial, which includes a right to have the public

present during voir dire.” United States v. Withers, 638 F.3d 1055, 1063 (9th Cir.

2011). A total courtroom closure for a non-trivial duration, without first

complying with the requirements of Supreme Court precedent, is structural error

that “warrant[s] habeas relief without a showing of specific prejudice.” Id. A trial

attorney’s failure to object to a courtroom closure may give rise to an ineffective

assistance of counsel claim. Id. at 1066–67.

      Kallas alleges the district court closed the courtroom for the entirety of voir

dire, which was a period of several hours on the first day of trial. While the court

was interviewing prospective jurors who had expressed an inability to serve for the

duration of the trial, the court called a recess, and off the record, ordered spectators

to step into the hallway to make room to seat prospective jurors in the

courtroom. Kallas alleges 10 people left the courtroom, and Kallas’s parents

submitted affidavits in which they swore they were “prevented from entering the

courtroom because it was closed for jury selection.” They stated that they waited

in the hallway outside the courtroom for three hours, and in the afternoon, people

left the courtroom because the court was in recess. Kallas claims that spectators

were not allowed back into the courtroom to view jury selection as space became

available.

      The government counters that the record contradicts Kallas’s claim that the


                                           6
court closed the courtroom because “the district court did not order spectators out

of the courtroom,” and because a press reporter had been present in the courtroom

during voir dire. But the government does not address Kallas’s allegation that the

district court ordered spectators out of the courtroom off the record, which would

explain why the trial transcript does not reflect such an order. As to the reporter,

Kallas’s motion mentions the reporter was present before the courtroom was

closed. The government fails to point to anything in the record to indicate that the

reporter was actually present in the courtroom during voir dire. Apart from the

trial transcript, the government cites no evidence to support its contention that the

courtroom was not closed.

      If true, Kallas’s allegations may entitle him to relief. See id. at 1066–

68. The government’s response and the record developed below do not show that

Kallas’s claim is “patently frivolous,” such that an evidentiary hearing, given this

record, was not required. Thus, we reverse the district court’s order as to this

claim and remand for an evidentiary hearing.

3.    Kallas alleges three instances of juror misconduct were sufficient to impact

the verdict: Juror No. 1 fell asleep for lengthy periods on every day of trial; a

second juror, a male, spoke to Kallas’s parents and stated, “I’m sorry. I know this

must be hard for you”; and a third juror, also a male, told Kallas’s father in the

hallway of the courthouse that two other jurors, who spoke in a foreign language,


                                          7
“don’t know what the Hell is going on in the trial.”

      “[I[n determining whether a hearing must be held” on juror misconduct

claims, “the court must consider the content of the allegations, the seriousness of

the alleged misconduct or bias, and the credibility of the source.” United States v.

Saya, 247 F.3d 929, 935 (9th Cir. 2001). “Although it is usually preferable to hold

an evidentiary hearing, it is not necessary where the court knows the exact scope

and nature of the extraneous information.” Id. (internal quotations, alterations, and

citations omitted).

      Crediting Kallas’s allegations here, the district court would “know[] the

exact scope and nature of the extraneous information.” Id. Considering the

content and seriousness of the alleged misconduct, it was not an abuse of discretion

to deny an evidentiary hearing as it pertains to the jurors’ statements to Kallas’s

parents. The expression of sympathy and the statement doubting other jurors’

understanding of the proceedings do not contain an indication of actual or implied

bias of the sort that we have recognized warrants relief. See United States v.

Olsen, 704 F.3d 1172, 1191–92 (9th Cir. 2013). Jurors’ off-handed statements to

family members observing a trial are not the type of serious misconduct that tend

to impact the verdict, like conducting outside research or lying during voir dire.

      With respect to the sleeping juror, Kallas fails to argue, much less establish,

that he suffered prejudice. See United States v. Olano, 62 F.3d 1180, 1189 (9th


                                          8
Cir. 1995); United States v. Morgenstern, 725 F. App’x 546, 550 (9th Cir.

2018). Accordingly, we affirm the district court’s denial of the motion as it

pertains to this claim.

4.    We are not persuaded that this case presents the rare circumstance where

reassignment upon remand is warranted. See Withers, 638 F.3d at 1068.

      AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




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