09- lO~ 1 JllN 3 0 9.010

ROBERT K. WONG, WARDEN, Petitioner,

V.

ANTHONY BERNARD SMITH, JR., Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO THEUNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

REPLY BRIEF FOR PETITIONER

EDMUND G. BROWN JR.. Attorney General of CaliforniaDANE R. GILLETTEChief Assistant Attorney GeneralDONALD E. DE NICOLADeputy State Solicitor GeneralMICHAEL P. FARRELLSenior Assistant Attorney GeneralBRIAN G. SMILEYSupervising Deputy Attorney GeneralDAVID ANDREW ELDRIDGEDeputy Attorney GeneralCounsel of Record

1300 I Street, Suite 125P.O. Box 944255Sacramento, CA 94244-2550Telephone: (916) 324-6291Fax: (916) 324-2960Email: David.Eldridge@doj.ca. gov

Counsel for Petitioner

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QUESTION PRESENTED

In only one case, Lowenfield v. Phelps, 484 U.S.231 (1988), has the Court passed on the merits of aclaim that judicial conduct amounted to jury"coercion" under the Constitution. In that case theCourt neither found "coercion" nor described whatmanner or extent of judicial conduct could, if ever,amount to "coercion." Do 28 U.S.C. § 2254(d) andthis Court’s "clearly established law" permit federalhabeas corpus relief on a claim that a state judgeunconstitutionally "coerces" jurors to return a guiltyverdict by identifying specific evidence in the case asimportant and instructing them to consider it?

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TABLE OF CONTENTSPage

Question Presented ..................................................................i

Reply Brief for Petitioner ........................................................19Conclusion ...............................................................................

TABLE OF AUTHORITIES

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CASES

Allen v. United States164 U.S. 492 (1896) ............................................................ 2, 4, 5, 8

Carey v. Musladin549 U.S. 70 (2006) .............................................................. 1,2, 3, 4

Clements v. Clarke592 F.3d 45 (lst. Cir. 2010) ............................................................ 7

Early v. Packer537 U.S. 3 (2002) ............................................................................ 1

Hooks v. Workman606 F.3d 715 (10th Cir. 2010) ........................................................ 2

Knowles v. Mirzayance129 S.Ct. 1411 (2009) ..................................................................... 5

Lockyer v. Andrade538 U.S. 63 (2003) ...................................................................... 4, 5

Lowenfield v. Phelps484 U.S. 231 (1988) .............................................................. passim

Monsanto Co. v. Geertson Seed Farms(No. 09-475) 2010 WL 2471057 (June 21, 2010) .......................... 6

Panetti v. Quarterman551 U.S. 930 (2007) .................................................................... 3, 4

Quercia v. United States289 U.S. 466 (1933) ........................................................................ 5

Strickland v. Washington466 U.S. 668 (1984) ........................................................................ 2

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TABLE OF AUTHORITIES(continued)

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Stringer v. Black503 U.S. 222 (1992) ........................................................................3

Taylor v. Sisto606 F.3d 622 (9th Cir. 2010) ..........................................................7

Victor v. Nebraska511 U.S. 1 (1995) ............................................................................5

Williams v. Taylor529 U.S. 362 (2000) ........................................................................4

Wright v. Van Patten552 U.S. 120 (2008) .................................................................... 1, 3

Yarborough v. Alvarado541 U.S. 652 (2004) ....................................................................3, 5

STATUTES

28 U.S.C. {} 2254(d) .................................................................... passim

REPLY BRIEF FOR PETITIONER

In this case, the judge instructed a reportedlydivided jury that it was important for them toconsider relevant evidence of respondent Smith’s andhis co-defendant’s statements that had been properlyadmitted at the trial. In doing so, the judge remindedthe jurors that his comments were merely advisoryand that.the jurors remained the exclusive arbiters ofthe facts. And, rather than suggesting that jurorsvoting in the minority bore any special obligation tore-consider their opinions, the judge instructed thatno juror should feel influenced to decide the case in aparticular way to accommodate the majority.

Despite the state appellate court’s reasonableconclusion that such instructions did notunconstitutionally "coerce" the jury into findingSmith guilty--and despite AEDPA’s deferential-review standard that permits federal habeas relief onSmith’s claim only if the state-court decision"unreasonably" applied "clearly established" Iaw asset out in the strict holdings of this Court’sconstitutional cases, see 28 U.S.C. § 2254(d)--anddespite an established tradition allowing broadjudicial comment on the evidence--the Ninth Circuitgranted Smith habeas corpus relief. That ruling waswrong, contradicts this Court’s precedents, andrepresents a chronic problem warranting this Court’sintervention~

As explained in the certiorari petition (Pet. 10-11), the Ninth Circuit decision violated § 2254(d) asinterpreted by this Court in reversing the NinthCircuit both in Early v. Packer, 537 U.S. 3, 10 (2002)(per curiam) and in Carey v. Musladin, 549 U.S. 70(2006). Early confirmed that "clearly established" lawunder § 2254(d) consists only of constitutionalholdings binding on the States in this Court’sjurisprudence. And Musladin made it clear that"clearly established law" further requires aconstitutional holding that squarely addresses thekind of factual context that gives rise to thepetitioner’s claim. Accord, Wright v. Van Patten, 552U.S. 120, 125 (2008) (per curiam). But, here, none of

the precedents on which the Ninth Circuit cruciallyrelied reflects any constitutional holding by thisCourt squarely addressing the propriety of judicialcomment on the evidence or comment identifyingproperly-admitted trial evidence for the jury toconsider--whether in the face of a jury deadlock ornot. Indeed, these precedents provide no clearly-established standards that bind the state courts indetermining when judicial "coercion" of a jury hasoccurred.

But an entitlement to an "uncoercedverdict" is hardly a specific legal rule. Thesentence is so general as to offer noguidance beyond the specific holdingdictated by the facts of that case--jurypolling and an Allen charge in that casedid not amount to coercion. [N.] As towhat does constitute jury coercion,Lowenfield is no more revealing thansaying a defendant is entitled to effectiveassistance of counsel. Strickland v.Washington, 466 U.S. 668, 104 S.Ct. 2052,80 L.Ed.2d 674 (1984). But unlikeStrickland and it’s progeny, which at leastprovide guidance for its application, [N.]Lowenfield, establishes nothing more thana general (perhaps merely aspirational)principle without a hint as to how courtsare to determine whether a Constitutionalviolation occurred.

Hooks v. Workman, 606 F.3d 715, 758-759 (10th Cir.2010) (O’Brien, J., dissenting) (original emphasis).

1. In his opposition brief, Smith tacitlyacknowledges that none of this Court’s constitutionaldecisions squarely addresses whether a judicialinstruction identifying evidence for the jury toconsider might prove impermissibly "coercive." Theabsence of such precedent is enough to sound thedeath knell for the Ninth Circuit opinion in this case.See Musladin, 547 U.S. at 77. Extending profferedconstitutional rules into new con.texts, to serve as abasis for relief, is out of bounds in federal habeascorpus review of final state judgments. Id., at 75-77;

Van Patten, 552 U.S. at 125; Yarborough v. Alvarado,541 U.S. 652, 666 (2004); accord, Stringer v. Black,503 U.S. 222, 228 (1992) (pre-AEDPA anti-retroactivity doctrine).

Instead, Smith suggests that no such "clearlyestablished law" under Musladin need be shown. Hecontends that this Court, without mentioning it,somehow overruled the unanimous Musladin opinionwhen concurring Justice Kennedy joined the majorityon a different issue in Panetti v. Quarterman, 551U.S. 930 (2007). (Opp. 17-18.) But that suggestion isfanciful. Certainly, it would come as a surprise inlight of this Court’s post-Panetti reliance onMusladin in Wright v. Van Patten.

Panetti in no way undermines Musladin on thequestion of what constitutes "clearly establishedFederal law" under § 2254(d). In Musladin, thisCourt recognized that its precedents addressing howcertain official courtroom practices might unfairlyinfluence the jury never addressed, and thereforenever "clearly established," any constitutional rulegoverning the petitioner’s claim about prejudicecaused by spectators wearing buttons supporting thealleged crime victim. In contrast, and in light of adifferent set of relevant precedents, this Courtrecognized that it indeed had laid down "clearlyestablished" law governing procedures for addressingthe specific kind of claim, that of allegedincompetence to be executed, at issue in Panetti. Inciting Panetti, moreover, Smith misplaces hisreliance on the portion of this Court’s opinion thatundertook de novo review of the federal appellatecourt’s conclusion about the scope of the petitioner’ssubstantive right under federal law. (Opp. 16-17o)

2. Seeking to portray this case as one of"unreasonable application" of presumed clearly-established law, Smith argues that the federalhabeas corpus court retains the power to apply itsown "best judgment" on the question of whether theunique facts of the case, though different from thefacts presented in one of this Court’s precedents, riseto the level of a constitutional violation under aclearly-established but vague or generalized rule.

Straining to label the judge’s instructions as a so-called "dynamite" charge, see Allen v. United States,164 U.S. 492 (1896) (upholding "dynamite"instruction), Smith contends that the Ninth Circuitproperly found the state trial judge’s commentsunconstitutional under a proffered generalized rulecondemning "coerced" jury verdicts that he locates inthis Court’s opinion in Lowenfield v. Phelps, 484 U.S.231 (1988). (Opp. 4, 12, 16-17.) But these argumentsare invalid too.

a. Most fundamental, Smith’s argument begsthe Musladin "clearly established -law" issue.Without a showing of "clearly established law" underthis Court’s precedents as a pre-requisite, Smithcannot hope to meet his burden of showing that thestate court unreasonably applied it.

b. Even if the governing law were "clearlyestablished" here, Smith’s view of § 2254(d) wouldremain invalid. As with his attempt to ignore the"clearly established law" requirement, Smith’sinvocation of the federal court’s "best judgment"implies "de novo" review rather than review of thestate judgment merely for objective reasonableness.Thus, his argument ignores the literal terms of thedeferential review standard of § 2254(d) completely.Contrary to Smith’s view, a federal court mustuphold a state-court adjudication under § 2254(d) ifthe ruling is at least reasonable under clearly~established law, even if the federal court in its own"best judgment" deems the state-court ruling to bewrong. Lockyer v. Andrade, 538 U.S. 63, 75-76 (2003);Willia~ns v. Taylor, 529 U.S. 362, 410-411 (2000).Smith’s view of Williams, which he cites as supportfor his contention, would turn that case on its head.

Nor, despite Smith’s. reliance on it (Opp. 16),does anything in Panetti v. Quarterman allow thefederal court to grant relief where the state court’sapplication of clear federal law is at least"reasonable." This Court in Panetti proceeded to denovo review only after first determining, underdeferential § 2254(d) review, that the state courtdecision in that case indeed had "unreasonably"applied the law as clearly established in Supreme

Court precedents that had addressed the type ofincompetence claim raised by the petitioner.

c. In all events---even if this Court’s precedentssomehow had "clearly established" that Smith’sproffered "no coerced jury verdicts" rule applied tojudicial comment on the evidence and that thoseprecedents did so even without laying down anyclearly established criteria or standards binding onthe States for its application--the Ninth Circuitjudgment in this case violated § 2254(d) nonetheless.For the Ninth Circuit still ignored the wide latitudethat, as this Court has recognized, the habeas corpusreform statute in any event affords state courts inapplying such a vague or generalized principle to theunique facts of a prisoner’s constitutional claim. SeeKnowles v. Mirzayance, 129 S.Ct. 1411, 1420 (2009);Yarborough, 541 U.S. at 664.

Here, the judge told the jurors to considerproperly-admitted evidence in reaching their ownconclusion about the facts. Such a statement at leastreasonably can be judged to fall within the matrix ofcomments traditionally approved by this Court andother federal courts for federal cases. As explained inQuercia v. United States, 289 U.S. 466, 468 (1933), afederal judge properly may call the jury’s attention to"parts" of the evidence he thinks important and mayeven "express his opinion upon the facts." (See Pet.19-20.)

Especially in the absence of specific clearly-established criteria applicable to judicial comment,see Lockyer, 538 U.S. at 76, nothing in the state-courtrecord compelled the state court to adopt thedebatable conclusion--improbable and erroneous inits own right--that the entirety of the instruction inthis case likely would have "coerced" the jurors. SeeVictor v. Nebraska, 511 U.S. 1, 6 (1995). On the onehand, unlike the instruction attacked as oppressingthe minority-view jurors in Allen v. United States,164 U.S. 492--a precedent the Ninth Circuit treatedas supporting its § 2254(d) ruling even though Allenwas not a constitutional case and even though Allenin fact approved the challenged instruction--thejudge’s comments here refrained from singling out

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minority-opinion jurors so as to require them tosubject their views to special scrutiny in order toreach a unanimous verdict. On the other hand, likethe instruction approved by this Court in Lowenfieldv. Phelps, 484 U.S. 231--another precedentapproving a challenged instruction yet illogicallytreated by the Ninth Circuit as supporting its §2254(d) ruling--the judge’s supplemental instructionhere explicitly reassured any minority-view jurorsthat they need not surrender their honest beliefs onaccount of majority opposition. (App. 106a-107a.)

Neither did the judge reqmre the jury toconsider only parts of the evidence that incriminatedSmith. Even if such an instruction illogically could bedeemed relevant to "coercion," the judge in calling forthe jury to consider Smith’s and his co-defendant’sstatements caused the entirety of the tape-recordingsof their statements to be played to the jury inconnection with his comments. Finally, despitepetitioner’s repeated and strained attempts toportray the judge’s instructions as amounting to a so-called "dynamite" charge forcing them to reach averdict (Opp. 14), the judge’s comments merelyencouraged the jurors, unremarkably, to seek aunanimous verdict as a "goal" (Opp. 14) whileassuring them that they need reach a verdict only ifdoing so would not do "violence" to their "individualjudgment." (App. 101a-102a.)

3. Smith’s arguments only highlight theimportance of uniformity on the fundamentalquestion of what degree and kind of scrutiny federalcourts may engage in under § 2254(d). This Court’srole on certiorari review, of course, extends tocorrecting the lower courts on the "proper mode ofanalysis" employed to reach a correct decision. SeeMonsanto Co. v. Geertson Seed Farms (No. 09-475)2010 WL 2471057, at "12 (June 21, 2010).

a. Certiorari review for guidance on the"proper mode of analysis" is further appropriate here.For, as noted in the certiorari petition (pp. 15-16),this case represents the second time the NinthCircuit, reacting to the absence of substantivestandards from this Court on the question of jury

coercion, has in a published decision resorted to rulesinferred from this Court’s non-constitutionaldecisions in order to provide a foundation forintrusive rather than deferential scrutiny of the statetrial judge’s conduct. See also Taylor v. Sisto, 606F.3d 622, 627-628 (9th Cir. 2010) (Ninth Circuitagain relies on non-constitutional supervisory-powerprecedents as basis for habeas relief on jury-instruction claim).

b. Smith suggests that certiorari isunwarranted for lack of "split in the federal circuits."(Opp. 1.) The evidence is to the contrary. The FirstCircuit has held that Lowenfield did not clearlyestablish any substantive criteria for assessingwhether "coercion" of a jury has occurred; itexplained that, "[t]o the extent that Lowenfield doesconstitute clearly established federal law, that lawcan be summarized as follows: defendants have aright against coerced jury verdicts, and any potentialcoercion should be measured based on the totality ofthe circumstances." Clements v. Clarke, 592 F.3d 45,57 (1st. Cir. 2010). In contrast, the Ninth and TenthCircuits have determined that Lowenfield indeedclearly ~stablish substantive criteria. To elaborate:When rejecting the jury-coercion claim in Lowenfield,this Court "note[d]" the fact that "defense counsel didnot object to either the polls or the supplementalinstruction" and stated "we think such an omissionindicates that the potential for coercion argued nowwas not apparent to one on the spot." Lowenfield,484 U.S. at 240. But the Ninth and Tenth Circuitshave discerned in Lowenfield purported clearlyestablished law for the converse point--that, ifpartisan counsel does claim harm to the defendant,then such objection affirmatively tends to show therewas harm.1 Yet Lowenfield did not expressly discuss

~Hooks, 606 F.3d at 748 (majority opinion); Smith v.Curry, 580 F.3d 1071, 1084 ("Defense counsel timely objected oncoercion grounds, demonstrating that the potential harm to thedefehdant, as well as the judge’s preconceived view of Smith’sguilt, was immediately apparent. Cf. [Lowenfield, at 240]

(continued...)

the converse situation where defense counsel doesseek advantage by objecting, because those were notthe facts presented. Indeed, because such facts werenot present, had this Court included such discussionin its opinion it would have been only dictum andthus irrelevant under 28 U.S.C. § 2254(d)(1).

Likewise, this Court in Lowenfield noted theinstruction in Allen was "similar but by no meansidentical" to the instruction challenged by defendantLowenfield, and that such similarity sufficed to findthe instruction constitutional. 484 UoS. at 237-239.The Ninth Circuit has cited this observation, too, asthough it clearly established the converse principlethat dissimilarity to Allen affirmatively tends toshow a constitutional violation.2 But Lowenfield didnot expressly discuss the converse situation where aninstruction was substantially dissimilar becausethose were not the facts presented. Again, absentsuch facts, had this Court included such discussion ittoo would have been irrelevant dictum under 28U.S.C. § 2254(d)(1).

(...continued)(defense counsel’s failure to object to a supplemental instruction’indicates that the potential for coercion argued now was notapparent to one on the spot’)."). It would not be objectivelyreasonable for a state court to decline to find in Lowenfield arule that defense counsel’s objection to an instruction tends toprove error in the instruction.

2 Smith v. Curry, 580 F.ad at 1080 ("The thirdsupplemental charge, however, went far beyond Allen."). Also,as noted in the certiorari petition (Pet. 12), Allen in fact was nota constitutional decision. Smith errs in suggesting (see Opp. 9)that Allen established a "bedrock principle[]" to be appliedretroactively in this federal habeas review of a state judgment.

Thegranted.

CONCLUSIONpetition for a writ of certiorari should be

Respectfully submitted

EDMUND G. BROWN JR.Attorney General of CaliforniaDANE R. GILLETTEChief Assistant Attorney GeneralDONALD E. DE NICOLA

-Deputy State Solicitor GeneralMICHAEL e. FARRELLSenior Assistant Attorney GeneralBRIAN G. SMILEYSupervising Deputy Attorney General

*DAVID ANDREW ELDRIDGEDeputy Attorney General

*Counsel of RecordCounsel for Petitioner

JUNE 30, 2010

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