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Tong Xiong v. Tom Felker

June 5, 2012


Appeal from the United States District Court for the Eastern District of California John A. Mendez, District Judge, Presiding D.C. No. 2:07-cv-02689-JAM-CHS

The opinion of the court was delivered by: M. Smith, Circuit Judge



Submitted March 12, 2012*fn1 San Francisco, California

Before: John T. Noonan, M. Margaret McKeown, and Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr., Circuit Judge; Dissent by Judge Noonan


This case presents three certified issues which we review under the Anti-terrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254(d): (1) whether Petitioner-Appellant Tong Xiong's (Xiong) federal due process rights were violated when the trial court construed California law to allow jurors to refuse to discuss their deliberations and alleged misconduct after trial; (2) whether jury misconduct involving unsolicited observations of some jurors deprived Xiong of his right to an impartial jury; and (3) whether Xiong received ineffective assistance of counsel due to counsel's elicitation of unfavorable expert testimony on cross-examination.

Following an initial mistrial, Xiong was convicted of second degree murder with aggravating enhancements. Xiong received a sentence of 40 years to life, with a firearm enhancement. Xiong appealed his conviction to the California Court of Appeal on multiple grounds, including insufficient evidence, ineffective assistance of counsel, and jury misconduct. The Court of Appeal vacated a single sentence on the firearm enhancement, but affirmed on all other counts, thereby reducing Xiong's sentence to 15 years to life. Xiong subsequently filed a habeas petition in the United States District Court for the Eastern District of California, pursuant to 28 U.S.C. § 2254(d).

Under the facts of this case, as controlled by the Anti-terrorism and Effective Death Penalty Act (AEPDA), 28 U.S.C. § 2254(d), we may only reverse the state court's conviction if no fair minded jurist could conclude that the petitioner's clearly established constitutional rights, as established by the Supreme Court of the United States, were not violated. We hold that the California Court of Appeal's decision was not an unreasonable application of Xiong's Sixth and Fourteenth Amendment rights under AEDPA's stringent standards, and we affirm the decision of the district court denying Xiong's petition for habeas corpus relief.


Xiong and two co-defendants were charged with murder, discharging a firearm at an inhabited dwelling, discharging a firearm from a motor vehicle at a person not in the vehicle, and discharging a firearm from a motor vehicle. Additional enhancements were also sought, including several firearm enhancements, a criminal street gang enhancement, and the special circumstance of intentional first degree murder perpetrated by discharging a firearm from a motor vehicle. The state trial court declared the first trial a mistrial after the jury was unable to reach a verdict. Xiong's conviction on retrial gave rise to the petition for a writ of habeas corpus at issue in this appeal.

Xiong's ineffective assistance of counsel claim arises out of an incident during the cross-examination of one of the prose-cution's expert witnesses. During cross-examination, counsel elicited unfavorable testimony from the prosecution's gang expert, to the effect that individuals in a car with a "gang mentality," present during the commission of a crime, would be promoting gang activity solely by their presence. Specifically, the prosecution's gang expert testified that while in that car, "whatever happens and what[ever] they encounter, they are all down for [it]. That's how gangsters work."

Xiong's due process, fair trial and impartial jury claims arise out of the jury's consideration of extrinsic evidence relating to the testimony of his brother, Fue (Fue). When called by the prosecution as a hostile witness, Fue testified on direct examination that he could not remember many answers to questions about Xiong's offenses and alleged gang affiliations that he had previously given when interviewed by the police. He was impeached by the prosecution, which played a videotape of the police interview in which a clearly lucid Fue stated that his brother had shot someone. On cross-examination, Fue testified that he had been "knocked out" before, had memory problems, and was easily confused. Fue testified that he could not even recollect testimony he gave during his direct and cross-examination, and did not remember reading the transcript of his police interview that morning during his testimony. Fue also testified that he could not identify the President of the United States or the Governor of California.

During the course of Fue's two days of testimony, Jurors Three, Nine and Ten, in passing, observed Fue talking in a hallway on his cell phone in a clear and coherent manner. In a declaration, Juror Nine stated that Fue's out-of-court demeanor was discussed by the jury during its deliberation, but later corrected the declaration to state that this information was only discussed after the jury had already found Fue not credible based on the impeachment evidence presented.

Xiong was ultimately found guilty of all counts, including second degree murder. The jury at his retrial also found that Xiong acted as a principal in the firearm offense and that he committed the offenses for the benefit of a criminal street gang. However, the jury rejected an additional enhancement for Xiong's personal use of a firearm. Ultimately, Xiong was convicted and sentenced to a term of 15 years to life for the murder, as well as a consecutive term of 25 years to life for the firearm enhancement. Sentences on the remaining counts were stayed, for a total sentence of 40 years to life.

After the jury rendered the verdict and was discharged, Xiong's attorney learned of the jurors' observations of Fue outside of the courtroom. Xiong's counsel requested that the court release juror contact information so that he could investigate the matter. On October 22, 2004, the trial court found that Xiong had shown good cause for disclosure of the jurors' contact information. However, the court indicated that it would contact the jurors first, and if the jurors did not want to be heard about the matter, then the law entitled them to decline to discuss the proceedings. In the following hearing, the court informed the parties that it had contacted the jurors in writing about the defense's request for contact information and that it had also informed the jurors that if they did not respond, they would be treated as if they did not wish to be contacted. Ultimately, ten of the twelve jurors responded, three of whom ultimately indicated they didn't want to be contacted in the future. The remaining seven jurors provided their contact information.

On December 14, 2004 Xiong filed a motion for a new trial on the ground of jury misconduct. Xiong's motion included declarations from Jurors 5, 9 and 10, discussing the jurors' observations of Fue in the hallway. The court held a hearing and subsequently denied Xiong's motion on the basis that Xiong suffered neither prejudice nor actual bias from the jury's exposure to the extrinsic evidence.

Xiong appealed, challenging the sufficiency of the evidence of his conviction, the trial court's refusal to require jurors to discuss their deliberations with the defense upon good cause, and the jury's consideration of the extraneous evidence. The California Court of Appeal reversed the criminal street gang and firearm use enhancements for insufficient evidence, but affirmed the judgment on all other grounds. Xiong's sentence was reduced to 15 years to life.

Xiong filed a petition for writ of habeas corpus in the district court on the grounds of ineffective assistance of counsel and jury misconduct. A magistrate judge filed findings and recommendations denying both claims. Subsequently, the district court adopted the magistrate judge's findings and recommendations in their entirety. Xiong timely appealed.


We review the district court's denial of Xiong's habeas petition de novo. Yee v. Duncan, 463 F.3d 893, 897 (9th Cir. 2006). Under AEDPA, we may not grant his petition "unless the adjudication of the claim-(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) (emphasis added); see also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). "Clearly established federal law" means "the governing legal principle or principles set forth by the Supreme Court at the time ...

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