                                                                            FILED
                            NOT FOR PUBLICATION                              FEB 10 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



MARK VINCENT TEDESCHI,                           No. 10-15015

              Petitioner - Appellant,            D.C. No. 1:08-cv-00820-JLS-CAB

  v.
                                                 MEMORANDUM *
DEBRA DEÈTER, Warden; EDMUND G.
BROWN, Jr., Attorney General of the
State of California,

              Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                   Janis L. Sammartino, District Judge, Presiding

                      Argued and Submitted January 10, 2011
                            San Francisco, California

Before: HUG, SCHROEDER, and RAWLINSON, Circuit Judges.

       Marµ Vincent Tedeschi ('petitioner'), a California state prisoner, appeals

the district court's denial of his 28 U.S.C. y 2254 habeas petition challenging his

jury conviction for second degree murder. We have jurisdiction under 28 U.S.C. y



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
2253. We review de novo the denial of a habeas petition. Arnold v. Runnels, 421

F.3d 859, 862 (9th Cir. 2005). Under the Antiterrorism and Effective Death

Penalty Act, this petition may be granted only if the last reasoned state decision

was contrary to or involved an unreasonable application of Supreme Court law or

was based on an unreasonable finding of the facts in light of the evidence. Davis v.

Woodford, 384 F.3d 628, 637 (9th Cir. 2004). We affirm.

      Petitioner argues his Sixth and Fourteenth Amendment rights were violated

by the introduction of extrinsic material during jury deliberations. The underlying

facts involve a family dispute. Petitioner and his wife, Shelley, were separated and

had a nine-year old daughter, Tiffani. Petitioner had been evincing threatening

behavior towards Shelley. He had threatened to µill her, telling her 'You're days

are numbered, bitch.' On November 10, 1995, Shelley's father, Robert Leisten,

drove to petitioner's house to picµ Tiffani up. Petitioner told his daughter to tell

him to come inside. Once Mr. Leisten entered, petitioner shouted, 'You and your

daughterÿ' and shot him. Tiffani witnessed the shooting. The police found Mr.

Leisten dead with two bullet wounds. A search of the home revealed notes written

by petitioner stating 'Tiffani, I'm sorry, please pray for your daddy, Marµ,' 'You

wouldn't talµ to me, this is the price you pay Shelley,' and 'I got tired of the pain,

Lord have mercy on my soul.'


                                           2
      After his conviction, petitioner filed a petition asserting inter alia that a juror

committed misconduct by looµing up the definition of 'malice' at the library

during deliberations and telling other jurors this definition. The trial court held a

hearing and all jurors testified. Seven jurors testified they did not recall a juror

stating he had gone to the library and looµed up the definition of 'malice.' Four

jurors recalled a juror had looµed up a dictionary definition of 'malice' and told

other jurors. None of the four jurors could recall the definition discussed, but one

juror said she remembered that the definition was 'similar' to the definition in the

jury instructions and that there was only a 'short discussion' regarding it. No juror

admitted to the conduct. After the two-day evidentiary hearing, the trial court

concluded that there was juror misconduct, but that there was no prejudice. The

California Court of Appeal held that there was no prejudice as well.

      Petitioner argues on appeal that his Sixth Amendment rights were violated

by the introduction of the extrajudicial definition of 'malice.' Under the Sixth

Amendment, a trial by a jury requires the verdict be based on evidence presented at

trial. Turner v. Louisiana, 379 U.S. 466, 472-73 (1965). Exposure to facts not in

evidence may deprive a defendant of the right of confrontation, cross-examination,

and assistance of counsel. Lawson v. Borg, 60 F.3d 608, 612 (9th Cir. 1995).

Misconduct may occur if a juror introduces a matter into deliberations which was


                                            3
not in evidence or in the jury instructions. Thompson v. Borg, 74 F.3d 1571, 1574

(9th Cir. 1996). Federal habeas relief is only warranted if a petitioner can establish

an error occurred and the error had a 'substantial and injurious effect or influence

in determining the jury's verdict.' Brecht v. Abrahamson, 507 U.S. 619, 627

(1993) (citations and internal quotation marµs omitted). We looµ to the following

factors to access prejudice: (1) whether the material was received; (2) how long it

was available and discussed; (3) when it was introduced; (4) factors indicating it

had a reasonable possibility of affecting the verdict; (5) the ambiguity of the

material or if it was cumulative or admissible; (6) if remedial action was taµen; (7)

the trial context; and (8) whether the material was prejudicial given the other

evidence in the case. Estrada v. Scribner, 512 F.3d 1227, 1238 (9th Cir. 2008);

United States v. Keating, 147 F.3d 895, 902-03 (9th Cir. 1998). No factor is

dispositive: 'The appropriate inquiry is whether there was a direct and rational

connection between extrinsic material and the prejudicial jury conclusion, and

whether the misconduct relates directly to a material aspect of the case.' Mancuso

v. Olivarez, 292 F.3d 939, 953 (9th Cir. 2002) (citations omitted).

      The California Court of Appeal's decision that no prejudice resulted from

the introduction of extrinsic material was not contrary to or an unreasonable

application of Supreme Court law. It was misconduct for the juror to introduce the


                                           4
dictionary definition of 'malice,' but it did not have a 'substantial and injurious

effect or influence in determining the jury's verdict.' Brecht, 507 U.S. at 627.

There is no evidence that the introduction of a dictionary definition of 'malice'

affected or altered one juror's vote regarding guilt. There is no evidence that the

infusion of such information had an affect on the verdict at all, much less a

substantial and injurious affect. A majority of the jurors recalled no discussion

regarding this definition and the jurors that did recall the discussion stated that it

was only brief and one juror stated the definition was similar to the one they had

been given. Also, there was overwhelming evidence to support the jury's verdict

because Tiffani witnessed the µilling and saw petitioner 'messing' with guns prior

to Mr. Leisten's entry, his behavior prior to the shooting demonstrated an intent to

harm, and the notes in his home indicated an intent to harm Shelley. Given the

overwhelming evidence of guilt, and the lacµ of evidence indicating the extrinsic

material had any affect, the California Court of Appeal's conclusion that the jury

misconduct did not prejudice the defendant was not contrary to or an unreasonable

application of Supreme Court law. See Mancuso, 292 F.3d at 953 (holding that the

juror misconduct did not have a substantial and injurious affect).

      AFFIRMED.




                                            5
                                           FILED
Tedeschi v. Dexter, No. 10-15015            FEB 10 2011
Rawlinson, Circuit Judge, concurring:   MOLLY C. DWYER, CLERK
                                         U.S . CO U RT OF AP PE A LS

     I concur in the result.
