Tucker v. Ryan

         DEATH PENALTY CASE

          ORDER

          Honorable Diane J. Humetewa United States District Judge.

         Pending before the Court are Respondents' Motion to Set Reasonable Page Limits and Motion to Preclude Juror Contact (Docs. 11, 12) and Petitioner Tucker's Motion to Stay Consideration of Respondents' Motion to Preclude Victim Contact (Doc. 18). The Court, having heard argument on February 21, 2018, rules as follows.

         1. Page limits

         Respondents ask the Court to set a limit of 200 pages for the petition and answer and 75 pages for the reply. (Doc. 11 at 2.) They argue that the Court has discretion to set page limits and that page limits are consistent with the purposes of the AEDPA to reduce delay and promote state-federal comity. (Id. at 3-4.) They also cite page limits imposed in other districts. (Id. at 3 n.2.)

         The District of Arizona has not placed page limits on habeas petitions, and this Court declines to do so on an ad hoc basis. Instead, the Court will refer Respondents' request for page limitations in capital habeas cases for consideration as a matter of District policy. See Morris v. Ryan, No. 17-CV-926-PHX-SPL, Doc. 16.

         2. Juror contact

         Respondents request that the Court order Petitioner not to contact any jurors other than by leave of Court upon a showing of good cause that juror misconduct may have occurred during the trial proceedings. (Doc. 12.)

         Federal courts have long recognized that “very substantial concerns support the protection of jury deliberations from intrusive inquiry.” Tanner v. United States, 483 U.S. 107, 127 (1987). In Tanner, the Supreme Court recognized that post-verdict investigation into jury misconduct would lead in some instances to the discovery of improper juror behavior, but expressed concern that allegations “raised for the first time days, weeks, or months after the verdict, [would] seriously disrupt the finality of the process” and could undermine “full and frank discussion in the jury room, jurors' willingness to return an unpopular verdict, and the community's trust in a system that relies on the decisions of laypeople.” Id. at 120-21.

         Generally, a verdict may not be impeached on the basis of the jury's internal deliberations or the manner in which it arrived at its verdict. Traver v. Meshriy, 627 F.2d 934, 941 (9th Cir. 1980). Rule 606(b) of the Federal Rules of Evidence is grounded in this common-law rule against admission of jury testimony to impeach a verdict. Although jurors may not be questioned about their deliberations and related matters, they may be questioned regarding any extraneous influence on their verdict. Tanner, 483 U.S. at 117; Traver, 627 F.2d at 941. Accordingly, Rule 606(b) allows juror testimony in limited circumstances to show that (1) extraneous prejudicial information was improperly brought to the jury's attention, (2) an outside influence was improperly brought to bear upon any juror, or (3) there was a mistake in the verdict form. See Tanner, 483 U.S. at 121; Fed.R.Evid. 606(b).

         As Tucker notes, the Supreme Court recently recognized another exception to the no-impeachment rule. In Pena-Rodriguez v. Colorado, 137 S.Ct. 855, 869 (2017), the Court held that “where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee.” The Court explained that “[n]ot every offhand comment indicating racial bias or hostility will justify setting aside the no-impeachment bar to allow further judicial inquiry.” Id. Instead, “the statement must tend to show that racial animus was a significant motivating factor in the juror's vote to convict. Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances. . .” Id.

         In a previous ruling in another capital habeas case, this Court granted Respondents' motion to preclude juror contact. Cota v. Ryan, No. 16-CV-3356-PHX-DJH, Doc. 14. Tucker, who is African American, asserts that the Court must reexamine its analysis based on the intervening holding in Pena-Rodriguez. (Doc. 17 at 4.) The Court disagrees.

         There is no statute, rule, or law prohibiting federal habeas counsel from interviewing jurors to discover admissible evidence of juror misconduct, or requiring a showing of good cause prior to contacting jurors. Nonetheless, post-verdict interviews with jurors are not looked on favorably in the Ninth Circuit, Hard v. Burlington Northern R.R., 812 F.2d 482, 485 (9th Cir. 1987), abrogated on other grounds by Warger v. Shauers, 135 S.Ct. 521 (2014), and district courts have “‘wide discretion' to restrict contact with jurors to protect jurors from ‘fishing expeditions' by losing attorneys.” United States v. Wright, 506 F.3d 1293, 1303 (10th Cir. 2007) (quoting Journal Pub. Co. v. Mechem, 801 F.2d 1233, 1236 (10th Cir. 1986)).

         While Pena-Rodriguez added racial bias to the categories of evidence not covered by the no-impeachment rule, it did not circumscribe the court's discretion to oversee post-verdict contact with jurors. “The practical mechanics of acquiring and presenting such evidence will no doubt be shaped and guided by state rules of professional ethics and local court rules, both of which often limit counsel's post-trial contact with jurors.” Pena-Rodriguez, 137 S.Ct. at 869. In United States v. Robinson, 872 F.3d 760, 770 (6th Cir. 2017), the Sixth Circuit held that the district court did not err when it failed to grant a new trial or conduct an evidentiary hearing on the basis of the jury foreperson's racially insensitive remarks to two African-American jurors ...