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Ninth Circuit:
Belated Claim That Juror Was Antagonist to Defendant Reasonably Found Implausible
Panel Affirms Denial of Writ of Habeas Corpus Sought By Man Convicted of Second-Degree Murder
By a MetNews Staff Writer
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PHILIP HANES inmate |
The Ninth U.S. Circuit Court of Appeals yesterday affirmed the denial of a petition for a writ of habeas corpus filed on behalf of a man convicted of second degree murder with special circumstances, declaring “reasonable” a San Luis Obispo Superior Court judge’s conclusion that the defendant’s post-conviction assertion that the jury foreman knew him and harbored animosity toward him was not credible.
In a memorandum opinion, a panel comprised of Judges Ryan D. Nelson, Gabriel P. Sanchez, and Lawrence VanDyke expressed agreement with the conclusion reached by District Court Judge Stanley Blumenfeld Jr. in following the recommendation by Magistrate Judge Karen L. Stevenson to deny relief.
Philip Hanes, an inmate of the state prison in Soledad, sought habeas relief, maintaining in a declaration that the foreman—whose name is redacted in the publicly filed version—had been a supervisor of his at PG&E he had worked for 15 years.
He asserted (with paragraph numbers omitted):
“On several occasions, he sexually harassed me by slapping me hard on my buttocks.
“—— also said horrible things about my best friend, a fellow PG&E employee…who underwent gender reassignment surgery….—told me that I should get the operation as well.
“—— threatened me numerous times with a sinister and creepy laugh when he stated, ‘I’ll get you my pretty and your little he-she too.’ “
Hanes contended that, during voir dire, he told his counsel about the man’s animosity toward him but the lawyer took no action. While the trial was in progress, he said in the declaration, he observed the juror “making threatening faces” at him.
The ground was not raised in his motion for a new trial, and was first brought up in a habeas corpus petition in the San Luis Obispo Superior Court. (The Court of Appeal and the California Supreme Court summarily denied petitions.) Stevenson rejected Hanes’s request for an evidentiary hearing, saying:
“There is no credible evidence of either ineffective assistance of counsel or juror misconduct. There is no factual dispute of material facts to be resolved at an evidentiary hearing. The only evidence is Petitioner’s statement which lacks credibility due to the fact that it is not believable that trial counsel would not have acted upon this information about the juror’s history with Petitioner.”
She found:
“The San Luis Obispo County Superior Court’s rejection of Petitioner’s juror bias claim was not objectively unreasonable.”
Ninth Circuit’s Decision
The Ninth Circuit drew attention to a recitation by San Luis Obispo attorney Ilan Funke-Bilu who represented Hanes at his trial. The lawyer said in a declaration:
“ I reviewed my voir dire notes regarding Juror No. 1, ——. My notes reflect that he worked for PG&E for 30 years in the maintenance department. There is nothing regarding —— working with Mr. Hanes in my notes.
“I do not recall discussing —— with Mr. Hanes. Had Mr. Hanes told me that he knew —— from working at Diablo Canyon, that is something I likely would have included in my notes.”
The judges commented:
“Petitioner’s claims about the foreperson are serious enough that it would be strange indeed for counsel to have simply disregarded (and forgotten) them if Petitioner had actually told him. Because of the belated timing, the lack of corroborating evidence, and counsel’s evidence supporting that Petitioner did not tell him the story, it was not unreasonable for the state court to determine that the allegations were not credible….
“This reasonable credibility determination defeats Petitioner’s claims of juror bias and ineffective assistance of counsel.”
Hanes was sentenced by San Luis Obispo Superior Court Judge Jacquelyn H. Duffy to a prison term of 15 years to life plus one year.
The case is Hanes v. Martinez, 21-56360.
State Appellate Decision
On Sept. 12, 2022, Div. Six of the state Court of Appeal for this district rejected Hanes’s contention that he is entitled to resentencing because he was convicted under the now-repudiated “natural and probable consequences” doctrine. Then-Justice Steven Z. Perren (now retired) said in the unpublished opinion:
“Prosecutors presented evidence that Hanes stabbed [Tina] Beddow when she threatened to end their relationship. Hanes maintained he acted in self-defense after Beddow attacked him during a methamphetamine-induced psychosis. His conviction rested on jurors finding his act or acts directly caused the victim’s stabbing death, not on his vicarious liability for a killing that occurred in the course of a separate target offense.”
Perren also authored the unpublished Feb. 27, 2017 opinion affirming the judgment of conviction.
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