Von Tobel v. Benedetti, No. 18-15892 (9-14-20)(Siler w/Bybee & R. Nelson). The 9th affirms denial of a petitioner’s claim involving juror misconduct.  Misconduct there was: the juror, before deliberations, conversed with a neighbor – a police officer – who said that the defendant wouldn’t be there if he hadn’t done something wrong. The state courts found this was misconduct, but that it was not egregious. The juror said he followed instructions, kept an open mind, and so forth. Since it was not egregious, the burden was on the petitioner to show probable prejudice. The petitioner could not meet the burden. In federal court, petitioner argued this was contrary to clearly established federal law. The 9th found there was no clearly established Supreme Court opinion that would either presume prejudice or that the burden of showing prejudice should not fall on the petitioner. Under AEDPA’s deferential standard, the Nevada’s Supreme Court’s decision was not contrary to federal law or an unreasonable application.

Tough loss for Kim Sandberg, Jonathan Kirshbaum, and Ryan Norwood, AFPDs, Nev. (Las Vegas).

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/09/14/18-15892.pdf