Fandozzi v . Warden 10-CV-368-SM 6/30/11
UNITED STATES DISTRICT COURT
DISTRICT OF NEW HAMPSHIRE
Gurrie Fandozzi,
Petitioner
v. Case N o . 10-cv-368-SM
Opinion N o . 2011 DNH 104
Richard Gerry, Warden,
New Hampshire State
Prison for Men,
Respondent
O R D E R
Respondent moves for summary judgment on Gurrie Fandozzi’s
petition for a writ of habeas corpus (doc. n o . 9 ) . See 28 U.S.C.
§ 2254. Fandozzi objects (doc. n o . 1 0 ) . The motion is granted,
and the petition is denied.
Factual Background
Petitioner was charged in state court with twenty-six
separate counts of first degree assault upon his six-month old
child. (Each count corresponded to a separate broken bone.) A
jury returned guilty verdicts on seven of those charges, but
acquitted petitioner with respect to the remaining nineteen.
Following petitioner’s trial, the prosecutor made a public
comment to the effect that she was confused by the verdicts. A
juror responded in an email:
I was Juror #4 on this case. The news media has
said you may be a little baffled as to our decision
. . . . Do not look at the verdict as anything but a
win. Mr. Fandozzi will be going away for many years.
I would be very willing to discuss our rationale for
the verdict as we were very concerned about the message
our verdict may send.
State v . Fandozzi, 159 N.H. 773, 785 (2010).
Under New Hampshire practice, counsel may not contact jurors
within thirty days after a verdict is returned. After that
period expired, an investigator from the prosecutor’s office
spoke to the juror and obtained statements that suggested that
the guilty verdicts might have been the product of some sort of
impermissible jury “compromise,” or might not have been based
exclusively upon the evidence presented at trial:
[The juror] said that in the end, they
“compromised” and found him guilty of a few of the
charges, leaving the other charges on the table in the
event [the State] wanted to prosecute the wife. [The
juror] then told me that “if he didn’t do i t , then he’s
covering up for her and that at least they got one of
them.”
Id.
The investigator also questioned other jurors, who generally
explained that “while some of the jurors believed that the
defendant’s wife could have caused some of the injuries, they all
agreed that only the defendant could have caused the seven
injuries for which he was found guilty.” Id. at 786. That i s ,
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the jurors looked at each count separately, and found petitioner
guilty of those charges that only he could have committed. The
jury apparently excluded, and found petitioner not guilty o f , any
charges involving injuries that the jury thought might have been
caused by petitioner’s wife. Id.
The investigator’s report was made available to the trial
judge, who promptly ordered it disclosed to the petitioner.
After reviewing the report, petitioner’s trial defense counsel
filed a motion to set aside the guilty verdicts on grounds of
juror misconduct, whereupon the trial judge reconvened the jury
and interviewed each juror on the record.
The trial judge asked each juror whether the jury had
followed the court’s instructions on the law; whether the verdict
was based exclusively on the evidence presented at trial, and the
law; whether the jury unanimously agreed that petitioner was
guilty beyond a reasonable doubt of each of the seven offenses of
conviction; whether potential punishment was a factor in deciding
petitioner’s guilt; and whether the jury decided beyond a
reasonable doubt that it was petitioner, and not his wife, who
committed the offenses for which he was convicted. The jurors
testified that the guilty verdicts were based upon the evidence
presented at trial and the court’s instructions on the law, and
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were not the result of compromise in which jurors abandoned their
beliefs about the defendant’s guilt or innocence. Id.
After considering the investigator’s report, juror comments,
and voir dire responses, the trial judge determined that there
had been no juror misconduct, and no impermissible “compromise”
in returning the guilty verdicts in petitioner’s case. The trial
judge did not permit attorney-conducted voir dire aimed at
further exploring the jurors’ rationale in reaching their
verdicts, and did not ask specific voir dire questions proposed
by the petitioner.
The New Hampshire Supreme Court ruled, on direct appeal,
that the trial court’s factual determination of no juror
misconduct was supported by the record. The state supreme court
also found the trial court’s inquiry into the issue of potential
juror misconduct to have been adequate, its post-conviction voir
dire of the jurors to have been thorough, and its decision not to
ask petitioner’s proposed voir dire questions a valid exercise of
discretion.
Discussion
As construed by the magistrate judge, the petition for
habeas corpus relief asserts two ripe federal claims:
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1. Petitioner’s Sixth and Fourteenth Amendment
rights to an impartial jury were violated
when the jury improperly relied on “outside
interference,” rather than just the evidence
presented, in rendering its verdicts (“Claim
1”);
2. Petitioner’s Sixth and Fourteenth Amendment
rights to due process and a fair trial by an
impartial jury were violated when Petitioner
was denied attorney-conducted, post-verdict
voir dire of the jurors, and the trial
court’s voir dire was inadequate to protect
Petitioner’s rights (“Claim 2 ” ) .
Respondent contends that both claims are unexhausted, were
procedurally defaulted in the state courts, and fail on the
merits. Petitioner does not address the question of procedural
default, other than by arguing that his claims were properly
exhausted.
A federal claim is properly exhausted for habeas review
purposes if it was presented to the state courts in a fair and
recognizable way, such that “a reasonable jurist would have been
alerted to the existence of the federal question.” Clements v .
Maloney, 485 F.3d 158, 162 (1st Cir. 2007). Both of petitioner’s
federal claims were fairly and clearly presented to the state
courts. His state supreme court brief directly asserted that the
trial judge erred in denying his motion to set aside the guilty
verdicts based upon substantial juror misconduct, in violation of
his rights under the Sixth and Fourteenth Amendments to the
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federal constitution. His brief also asserted that the trial
judge’s denial of attorney-conducted voir dire deprived him of
his federal Sixth Amendment right to a fair trial (citing a state
decision, State v . Weitzman, 121 N.H. 83 (1981), that involved a
similar Sixth Amendment claim). With respect to both federal
claims, then, petitioner has fully exhausted available state
remedies.
Neither claim was procedurally defaulted. In resolving
petitioner’s case, the state supreme court did not rest its
judgment on a state procedural bar.
Standard of Review
AEDPA and Petitioner’s Burden
Since passage of the Anti-Terrorism and Effective Death
Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), the power to
grant federal habeas relief to a state prisoner with respect to
claims adjudicated on the merits in state court has been
substantially limited. A federal court may not disturb a state
conviction unless the state court’s adjudication “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)(2). And, a habeas petitioner
seeking relief under that provision faces a substantial burden
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insofar as “a determination of a factual issue made by a State
court shall be presumed to be correct.” 28 U.S.C. § 2254(e)(1).
Alternatively, habeas relief may be granted if the state
court’s resolution of the constitutional issues before it
“resulted in a decision that was contrary t o , or involved an
unreasonable application o f , clearly established Federal law, as
determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). The Supreme Court explained the distinction
between decisions that are “contrary to” clearly established
federal law, and those that involve an “unreasonable application”
of that law as follows:
Under the “contrary to” clause, a federal habeas court
may grant the writ if the state court arrives at a
conclusion opposite to that reached by [the Supreme]
Court on a question of law or if the state court
decides a case differently than [the Supreme] Court has
on a set of materially indistinguishable facts. Under
the “unreasonable application” clause, a federal habeas
court may grant the writ if the state court identifies
the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applies
that principle to the facts of the prisoner’s case.
Williams v . Taylor, 529 U.S. 362, 412-13 (2000). The Court also
noted that an “incorrect” application of federal law is not
necessarily an “unreasonable” one.
The most important point is that an unreasonable
application of federal law is different from an
incorrect application of federal law . . . . Under §
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2254(d)(1)’s “unreasonable application” clause, then, a
federal habeas court may not issue the writ simply
because that court concludes in its independent
judgment that the relevant state-court decision applied
clearly established federal law erroneously or
incorrectly. Rather, that application must also be
unreasonable.
Id. at 410-11 (emphasis in original). S o , to prevail, the habeas
petitioner must demonstrate that “the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” Harrington v . Richter, 131 S . C t . 770,
786-87 (2011).
Finally, it probably bears noting that a state court need
not rely upon, nor need it even cite, Supreme Court precedent in
order to avoid resolving a petitioner’s claims in a way that is
“contrary to” or involves an “unreasonable application of”
clearly established federal law. See Early v . Packer, 537 U.S.
3 , 8 (2002) (“Avoiding these pitfalls does not require citation
of our cases - indeed, it does not even require awareness of our
cases, so long as neither the reasoning nor the result of the
state-court decision contradicts them.”) (emphasis in original).
In fact, even when a state court has summarily rejected a
petitioner’s federal claim without any discussion at all, “it may
be presumed that the state court adjudicated the claim on the
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merits in the absence of any indication or state-law procedural
principles to the contrary.” Harrington, 131 S . C t . at 784-85.
Under those circumstances - that i s , when “a state court’s
decision is unaccompanied by an explanation,” - the habeas
petitioner still bears the burden of “showing there was no
reasonable basis for the state court to deny relief.” Id. at
784.
Only as to federal claims that were not adjudicated on the
merits by the state court (and not dismissed by operation of a
regularly-applied state procedural rule), may this court apply
the more petitioner-friendly de novo standard of review. See,
e.g., Clements v . Clarke, 592 F.3d 45 52 (1st Cir. 2010) (“In
contrast, a state court decision that does not address the
federal claim on the merits falls beyond the ambit of AEDPA.
When presented with such unadjudicated claims, the habeas court
reviews them de novo.”) (citation omitted).
Merits
At bottom, petitioner takes issue with the state trial
court’s factual finding that his convictions were not the result
of jury misconduct or impermissible compromise. But that factual
finding, on this record, cannot be deemed “unreasonable” in light
of the evidence developed in the state court proceeding. First,
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that finding is entitled to a presumption of correctness. 28
U.S.C. § 2254(e)(1). Second, it undoubtedly was correct, given
the jurors’ responses to the trial judge’s voir dire questions,
the statements obtained by the investigator, and the absence of
any credible evidence tending to undermine the guilty verdicts.
The record discloses that the jury gave petitioner every
possible benefit of doubt by refusing to find him guilty of any
charge except those that it decided h e , and he alone, committed.
By acquitting defendant of every charge that the jury thought his
wife might have been involved i n , the jury fully preserved and
protected his Sixth and Fourteenth Amendment rights to a fair
trial. If the jury erred at all, it erred in defendant’s favor,
by not fully considering his individual guilt with respect to
charges that also implicated his wife and, instead, choosing to
acquit on all counts with respect to which she might also have
played a role.
Petitioner says that the trial judge should have determined
that “[t]he jury’s verdict was based on its belief that some of
the evidence implicated Mrs. Fandozzi [his wife] and some of it
exculpated Mr. Fandozzi.” Document n o . 1 0 , pages 3-4. It is a
difficult argument to understand. In one sense, the argument is
valid — the jury’s multiple verdicts were seemingly based on some
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speculation about petitioner’s wife’s involvement — but those
verdicts were not inconsistent with the trial judge’s factual
findings. That i s , the jury apparently did base its verdicts of
acquittal on its perception that Mrs. Fandozzi might have been
partially or entirely responsible for some of the charged
assaults, and, therefore, the jury refused to convict petitioner
of those charges, likely because, in its view, the state failed
to prove petitioner’s guilt beyond a reasonable doubt as to those
charges. As the trial judge found, however, petitioner was
convicted only of those assaults that the jury found, unanimously
and beyond a reasonable doubt, that he alone committed.
Petitioner does not challenge the verdicts of acquittal, of
course, and the guilty verdicts were not affected by “evidence
implicating Mrs. Fandozzi” that might tend to also exculpate
petitioner. Nothing in this record tends to undermine the
validity of the guilty verdicts returned by the jury.
Not only is the state trial court’s factual determination,
as affirmed on direct appeal, supported by the record, and
necessarily presumed in this proceeding to be correct, but even
under a de novo review standard, it would be found to be correct.
Petitioner has not identified any sound basis upon which to rest
a legitimate claim of deprivation of a federal right and has not
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shown the critical factual finding to be unreasonable in light of
the evidence presented.
With regard to the individual voir dire claim, again
petitioner has not shown that the state court’s decision not to
permit counsel-conducted voir dire, nor to put petitioner’s
proposed voir dire questions to the jury, as affirmed on direct
appeal, was either contrary to or an unreasonable application of
clearly established federal law. 28 U.S.C. § 2254(d)(1).
Petitioner complains about the scope of the trial court’s
inquiry, invoking the Supreme Court’s decision in Skilling
(decided a few months after the state supreme court affirmed
petitioner’s convictions) as establishing a constitutional rule
requiring something more than occurred in his case. See Skilling
v . United States, 130 S . C t . 2896 (2010). He also seems to argue
that the state decision affirming his convictions constituted
either an unreasonable application o f , or was contrary to federal
law as clearly established in Skilling.
But the Skilling decision recognizes that “no hard and fast
formula” describes the voir dire process required to ensure jury
impartiality. 130 S . C t . at 2917. Moreover, Skilling dealt with
entirely different issues than those raised in this case. Where
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Skilling addressed issues concerning the empaneling of an
unbiased jury under circumstances of widespread pretrial
publicity, the petition here raises distinct issues regarding the
adequacy of a post-verdict inquiry into alleged juror misconduct.
Still, if Skilling established an applicable rule of federal law
relevant here, it must be that “no hard and fast formula” yet
describes the constitutionally required depth and breadth of an
inquiry into jury impartiality. Certainly Skilling did not
plainly, or even implicitly, announce a hard and fast federal
rule requiring attorney-conducted voir dire, or a specific form
of inquiry, as part of any reasonable post-verdict assessment of
jury misconduct allegations.
More to the point, the state court’s post-conviction
proceeding was not only not inconsistent with any Supreme Court
mandate, but was also entirely consistent with applicable federal
law, which affords significant discretion to trial judges in
determining the reasonable scope of inquiry into a juror
misconduct claim:
We need not decide here what procedures the trial judge
should follow if he decides to make such an inquiry on
remand. See United States v . Mikutowicz, 365 F.3d 6 5 ,
74 (1st Cir.2004) (“[A] district court maintains
significant discretion in determining the type of
investigation required by a juror misconduct claim.”);
Ortiz-Arrigoitia, 996 F.2d at 443 (noting that a trial
judge is “not . . . shackled to a rigid and unyielding
set [of][sic] rules and procedures” but rather is
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“vested with the discretion to fashion an appropriate
and responsible procedure to determine whether
misconduct actually occurred and whether it was
prejudicial”); Mahoney v . Vondergritt, 938 F.2d at 1492
(upholding trial judge’s decision not to go beyond a
preliminary inquiry, held without counsel present, into
post-verdict allegations that jurors did not confine
their deliberations to evidence presented at trial).
United States v . Villar, 586 F.3d 7 6 , 88 (1st Cir. 2009).
Here, as discussed earlier, the trial judge’s inquiry was
reasonable, focused, meaningful, and, wisely avoided straying
into matters that were both within the province of the jury and
irrelevant to the inquiry at hand.
The petitioner was not prejudiced in any way by the trial
court’s declining to permit counsel to voir dire the jury
members, and further declining to ask his proffered voir dire
questions. The proffered questions were overly general, and not
adequately focused upon the critical issues. Essentially,
petitioner’s counsel wanted to inquire, or have the trial judge
inquire, as to what specific evidence led to petitioner’s
convictions and what to his acquittals. That line of inquiry
would not only have been unduly broad and intrusive, but
unhelpful. The issue before the trial court concerned whether
the guilty verdicts were the product of impermissible jury
compromise, not whether each juror could justify each guilty
verdict by reference to specific evidence. Petitioner’s intended
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voir dire was not properly framed, and the trial judge’s inquiry
was more than adequate to fully explore the critical issues: Did
the jury convict based only upon the evidence presented at trial;
did it follow the court’s instructions on the law; and did it
find every essential element of each crime of which it convicted
petitioner beyond a reasonable doubt? Petitioners’ wife’s
potential involvement in the child abuse underlying the criminal
charges against petitioner was a matter that led not to
petitioners’ convictions, but to his acquittals.
The record supports the trial judge’s findings of fact that
no misconduct occurred, and petitioner has not shown that the
state supreme court’s decision upholding the procedure employed
by the trial court was either contrary t o , or constituted an
unreasonable application o f , clearly established federal law, as
determined by the Supreme Court of the United States.
Conclusion
The respondent’s motion for summary judgment (document n o .
9 ) is granted. The amended petition for writ of habeas corpus
relief (document n o . 3 ) is denied. The Clerk of Court shall
enter judgment in accordance with this order and close the case.
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Certificate of Appealability
Because Fandozzi has not “made a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), the
court declines to issue a certificate of appealability.
Petitioner may, however, seek such a certificate from the court
of appeals under Federal Rule of Appellate Procedure 22(b). See
Rule 1 1 , Federal Rules Governing Section 2254 Cases (2010);
28
U.S.C. § 2253(c).
SO ORDERED.
June 3 0 , 2011
cc: Mark L. Sisti, Esq.
Elizabeth C . Woodcock, Esq.
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