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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

NATHANIEL KEITH CRAPE,

Petitioner, No. CIV S-04-1004 GEB GGH P

vs.

TERESA A. SCHWARTZ, 

Respondent. FINDINGS AND RECOMMENDATIONS

 /

I. Introduction

Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 2002 San Joaquin County

Superior Court conviction for arson of a structure (Cal. Penal Code § 451(c)) and for unlawfully

causing a fire that caused an inhabited structure to burn (Cal. Penal Code § 452 (b)). Petitioner

was sentenced to six years for the § 451(c) conviction and to a concurrent three year term on the

§ 452(b) conviction. 

Petitioner challenges his conviction on one ground: instructing the jury pursuant

to CALJIC No. 17.41.1 violated petitioner’s federal constitutional right to a unanimous jury

verdict. 

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II. Anti-Terrorism and Effective Death Penalty Act (AEDPA)

The Antiterrorism and Effective Death Penalty Act (AEDPA) applies to this

petition for habeas corpus which was filed after the AEDPA became effective. Neelley v. Nagle,

138 F.3d 917 (11th Cir.), citing Lindh v. Murphy, 521 U.S. 320, 117 S. Ct. 2059 (1997). The

AEDPA “worked substantial changes to the law of habeas corpus,” establishing more deferential

standards of review to be used by a federal habeas court in assessing a state court’s adjudication

of a criminal defendant’s claims of constitutional error. Moore v. Calderon, 108 F.3d 261, 263

(9th Cir. 1997). 

In Williams (Terry) v. Taylor, 529 U.S. 362, 120 S. Ct. 1495 (2000), the Supreme

Court defined the operative review standard set forth in § 2254(d). Justice O’Connor’s opinion

for Section II of the opinion constitutes the majority opinion of the court. There is a dichotomy

between “contrary to” clearly established law as enunciated by the Supreme Court, and an

“unreasonable application of” that law. Id. at 1519. “Contrary to” clearly established law applies

to two situations: (1) where the state court legal conclusion is opposite that of the Supreme

Court on a point of law, or (2) if the state court case is materially indistinguishable from a

Supreme Court case, i.e., on point factually, yet the legal result is opposite.

“Unreasonable application” of established law, on the other hand, applies to

mixed questions of law and fact, that is, the application of law to fact where there are no factually

on point Supreme Court cases which mandate the result for the precise factual scenario at issue. 

Williams (Terry), 529 U.S. at 407-08, 120 S. Ct. at 1520-1521 (2000). It is this prong of the

AEDPA standard of review which directs deference to be paid to state court decisions. While the

deference is not blindly automatic, “the most important point is that an unreasonable application

of federal law is different from an incorrect application of law....[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.” Williams (Terry), 529 U.S. at 410-11, 120 S. Ct. at

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26 See Exhibit (Exh.) 2 to Petition, p. 3. 1

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1522 (emphasis in original). The habeas corpus petitioner bears the burden of demonstrating the

objectively unreasonable nature of the state court decision in light of controlling Supreme Court

authority. Woodford v. Viscotti, 537 U.S. 19, 123 S. Ct. 357 (2002).

The state courts need not have cited to federal authority, or even have indicated

awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 123 S.

Ct. 362 (2002). Nevertheless, the state decision cannot be rejected unless the decision itself is

contrary to, or an unreasonable application of, established Supreme Court authority. Id. An

unreasonable error is one in excess of even a reviewing court’s perception that “clear error” has

occurred. Lockyer v. Andrade, 538 U.S. 63, 75-76, 123 S. Ct. 1166, 1175 (2003). Moreover, the

established Supreme Court authority reviewed must be a pronouncement on constitutional

principles, or other controlling federal law, as opposed to a pronouncement of statutes or rules

binding only on federal courts. Early v. Packer, 537 U.S. at 9, 123 S. Ct. at 366.

However, where the state courts have not addressed the constitutional issue in

dispute in any reasoned opinion, the federal court will independently review the record in

adjudication of that issue. “Independent review of the record is not de novo review of the

constitutional issue, but rather, the only method by which we can determine whether a silent state

court decision is objectively unreasonable.” Himes v. Thompson, 336 F.3d 848, 853 (9th Cir.

2003).

III. Discussion

Because the underlying facts of the case, beyond the fact of the conviction itself as

stated above, are not at issue, and by petitioner’s own concession, are not directly relevant to the 1

legal challenge raised by petitioner, the court will proceed to consideration of the issue raised.

Petitioner contends that the trial court erred in instructing the jury pursuant to

CALJIC No. 17.41.1 because that instruction impinged upon petitioner’s Sixth and Fourteenth

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 Clerk’s Transcript. 2

 Reporter’s Transcript. 3

 The undersigned notes that during the trial judge’s colloquy with the prosecutor and 4

defense counsel concerning applicable jury instructions, ironically, while the trial judge expresses

some reluctance to give CALJIC 17.41.1, defense counsel remains silent, raising no objection. 

As the prosecutor supported the giving of the instruction, it was therefore included:

“The Court [in relevant part]: ‘17.41.1, does counsel really want it? It takes poor DCA

three pages to explain why this is okay to give, but - -”

Mr. Baysinger [prosecutor]: Yes.

The Court: But, you know, it’s always an appeal.

Mr. Baysinger: I like it though.

The Court: You like it. Okay. I’ll give it.’” CT 439. 

 Petitioner pro se incorporates and relies only on his opening brief before the state 5

supreme court in his federal court petition. 

4

Amendment rights to a jury trial, to a unanimous jury and to have the jury free to use its power of

nullification. Petition, Exh. 2, p. 6. 

The challenged instruction in this case is CALJIC 17.41.1:

The integrity of a trial requires that jurors, at all times during their

deliberations, conduct themselves as required by these instructions. 

Accordingly, should it occur that any juror refuses to deliberate or

expresses an intention to disregard the law or decide the case based

on [penalty or punishment, or] any [other] improper basis, it is the

obligation of the other jurors to immediately advise the Court of

the situation. 

CT 227; RT 439, 498-99. 2 3 4

Petitioner argues that in People v. Engelman, 28 Cal.4th 436 (2002), the state

supreme court advised trial courts not give CALJIC 17.41.1, but made its ruling prospective. 

The state’s high court, petitioner contends, erred in not ruling the instruction in violation of

petitioner’s constitutional rights. Id. 

5

The state court of appeals, in finding petitioner’s argument (as

defendant/appellant) frivolous, responded as follows:

Defendant argues it was error to give CALJIC No. 17.41.1. The

claim is totally meritless in light of People v. Engelman (2002) 28

Cal.4th 436, decided by the California Supreme Court three

months before defendant filed his opening brief here.

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Defendant tries to evade Engelman by asserting “the California

Supreme Court did not deal with the federal constitutional issues

but rather relied upon the California Constitution” and that “federal

constitutional issues still exist and are not resolved by the

Engelman decision.” He also argues: “In Engelman, supra, 28

Cal.4th at p. 441, the court flatly stated that ‘the jury lacks the right

to engage in nullification’ but did not analyze the consequences or

discuss differing views or those of federal cases. Thus, California

case law does not directly contradict Mr. Crape’s position on this

issue.”

Defendant is wrong. The first sentence of the second paragraph of

Engelman states: “We agree with the Court of Appeal that the

instruction does not infringe upon defendant’s federal or state

constitutional right to trial by jury or his state constitutional right to

a unanimous verdict, . . .” (Engelman, supra, 28 Cal.4th at pp. 439-

440, italics added.)

To the extent defendant might counter that Engelman did not

address the federal constitutional right to a unanimous verdict, that

is no doubt because no such federal right exists. (Johnson v.

Louisiana (1972) 406 U.S. 356 [32 L.Ed.2d 152] [vote of 9 of 12

jurors is sufficient for guilty or not guilty verdict]; Apodaca v.

Oregon (1972) 406 U.S. 404 [32 L.Ed.2d 184] [votes of 11 to 1

and 10 to 2 suffice]; People v. Vargas (2001) 91 Cal.App.4th 506,

562 [“There being no right to a unanimous verdict under the

United States Constitution, the question of whether defendant was

entitled to a unanimity instruction is a state, not a federal, issue”].)

The fact that the Engelman majority opinion cited only one federal

court decision does not establish that it failed to decide issues

arising under the United States Constitution. (Engelman, supra, 28

Cal.4th at pp. 442-443, citing U.S. v. Thomas (2d Cir.1997) 116

F.3d 606.) The Engelman court was presented with claims that

CALJIC No. 17.41.1 impaired the “right to a jury trial guaranteed

by the federal and California Constitutions [] ([s]ee U.S. Const.,

6th & 14th Amends.; Cal. Const., art. I, § 16[])” and the “federal

constitutional right to due process of law . . . .” (Engelman, supra,

at p. 442.)

Engelman resolved the federal questions in an analysis that relied

primarily on its decisions in People v. Cleveland (2001) 25 Cal.4th

466, and People v. Williams (2001) 25 Cal.4th 441, two cases

involving jury nullification. (Engelman, supra, 28 Cal.4th at pp.

441-446.) Cleveland and Williams featured detailed analyses of

federal case law regarding federal constitutional issues. (People v.

Cleveland, supra, at pp. 480-484 [noting that federal district court

and circuit court decisions not binding on California Supreme

Court, even on federal questions, but “we consider them carefully

for the guidance they provide”]; People v. Williams, supra, at pp.

449-456, 459-460.) Several federal cases discussed by Cleveland

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 Brewer, supra, was decided on August 4, 2004. Respondent actually filed the Answer in

6

the instant case, to which petitioner did not file a Reply (Traverse), on the same day (see docket

entry no. 5). Because respondent did not have the benefit of this decision prior to filing the

Answer, no reference is made to this case.

6

and Williams are among those defendant relies on here.

Thus, even though the Engelman majority opinion cited only one

federal court decision, it implicitly and necessarily incorporated a

far-ranging federal constitutional analysis by reference to

Cleveland and Williams – not to mention the fact that Engelman

expressed that it was decided on both state and federal grounds. 

Defendant misrepresents the import of Engelman by asserting it

did not decide the federal constitutional claims at issue there.

Defendant’s appeal is frivolous. “[I]t indisputably has no merit – 

[since] any reasonable attorney would agree that the appeal is

totally and completely without merit.” (In re Marriage of Flaherty

(1982) 31 Cal.3d 637, 650.) [footnote 1]

[Footnote 1]If defendant challenged CALJIC No.

17.41.1 solely to preserve the issue for possible

federal review, then he should have acknowledged

that Engelman reached the federal questions, noted

that this court could not rule in defendant’s favor

because it is bound by the California Supreme Court

decision (Auto Equity Sales, Inc. v. Superior Court

(1962) 57 Cal.2d 450), and expressed his reason for

raising the issue. We would not have found the

appeal frivolous had he done so.

The judgment is affirmed.

Petitioner’s Exh. 3, pp. 2-5 ; Respondent’s (Resp.) Exh. C, Unpub. Opinion of the Third District

Court of Appeal, pp. 2-5. 

The California Supreme Court denied petitioner’s petition for review without 

comment. Resp. Exh. F. 

A decision by the Ninth Circuit disposes of the precise issue raised by petitioner. 

Brewer v. Hall, 378 F.3d 952 (9th Cir. 2004). The Ninth Circuit – whose decisions, of course,

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are binding authority upon this court – has held that the state court determination that a

petitioner’s constitutional rights were not violated by use of the California pattern instruction

regarding jury nullification was neither contrary to, nor an unreasonable application of, clearly

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26 Specifically, the jury requested “judge’s/jury instructions with all the counts written out 7

and description.” CT 165.

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established federal law. While expressing no independent view as to the constitutional merits of

CALJIC 17.41.1, the federal appellate court explicitly observed that there is no decision by the

United States Supreme Court establishing “that an instruction such as CALJIC 17.41.1 violates

an existing constitutional right.” Brewer, supra, at 956. 

Indeed, related statements of the Court have emphasized that the

right to a representative jury [does not include] the right to be tried

by jurors who have explicitly indicated an inability to follow the

law and instructions of the trial judge.” Lockett v. Ohio, 438 U.S.

586, 596-97, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978); see also Sparf

v. United States, 156 U.S. 51, 72-73, 15 S.Ct. 273, 39 L.Ed. 343

(1895) (stating that jurors are bound to follow the law as stated by

the trial court). Nor has the Supreme Court found a constitutional

violation in removing jurors who are unwilling or unable to follow

the trial court’s instructions. Cf. Morgan v. Illinois, 504 U.S. 719,

730, 112 S.Ct. 2222, 119 L.Ed. 492 (1992) (discussing purposes of

the voir dire process).

Id. 

Moreover, the decision in Brewer was rendered adversely to petitioner therein in 

circumstances far more arguably colorable than any presented by petitioner in the instant case. 

Even though the trial court had given the CALJIC 17.41 instruction repeatedly with the express

knowledge that the jury was deadlocked and that there was at least one juror who may have been

improperly considering the penalty, the Ninth Circuit did not find it constitutionally improper as

applied even if the instruction was not found to be facially unconstitutional because no Supreme

Court precedent created clearly established law in support of such a claim. Brewer, supra, at 956.

As respondent contends, here the record does not even show any adverse effect upon

deliberations, nor did the jury communicate any difficulties in the deliberative process. Answer,

p. 11, citing RT 504-517, 529-531. The jury in the instant case requested supplies (CT 164),

asked for written instructions (CT 165 ) and a read-back of certain testimony, and sought 7

clarification of the charges (CT 166), then notified the court that a verdict had been reached (CT

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167). Id. 

The Brewer Court, finding that no Supreme Court authority has held that an 

antinullification instruction violates due process, also found unpersuasive petitioner’s reliance on

Estelle v. McGuire, 502 U.S. 62, 112, S. Ct. 475 (1991), “which stands for the broad proposition

that an erroneous jury instruction can rise to the level of unconstitutional error if it ‘so infected

the entire trial that the resulting conviction violates due process.’” Id. (quoting Cupp v.

Naughten, 414 U.S. 141, 147, 94 S. Ct. 396 (1973). 

Similarly misplaced was petitioner’s reliance upon United States v. Symington, 

195 F.3d 1080, 1087 (9th Cir. 1999), which found impermissible dismissal of a juror where

“there is ‘any reasonable possibility that the impetus for a juror’s dismissal stems from the juror’s

views on the merits of the case.’” Brewer, supra, at 957. Petitioner’s reliance thereon was

inapposite both because the analysis in Symington was based on a Federal Rule of Criminal

Procedure (Rule 23(b)), not upon the federal constitution, and because it is not a Supreme Court

case. Id. 

Finally, just as the state appellate court did herein, the Ninth Circuit noted that in 

Engelman, supra, the California Supreme Court only discontinued future use of CALJIC 17.41.1

based solely on its supervisory capacity over lower state courts and not because the instruction

violated any established federal constitutional right. Id. The Brewer Court, in fact, explicitly

found that the state supreme court decision in Engelman “comports with our own assessment of

Supreme Court precedent.” 

Therefore, this court finds that the denial of petitioner’s sole claim by the 

California Supreme Court was not an unreasonable application of clearly established Supreme

Court authority and the petition should be denied.

Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for

a writ of habeas corpus be denied.

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These findings and recommendations are submitted to the United States District

Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty

days after being served with these findings and recommendations, any party may file written

objections with the court and serve a copy on all parties. Such a document should be captioned

“Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections

shall be served and filed within ten days after service of the objections. The parties are advised

that failure to file objections within the specified time may waive the right to appeal the District

Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: 8/1/06

/s/ Gregory G. Hollows

____________________________________

GREGORY G. HOLLOWS

 UNITED STATES MAGISTRATE JUDGE

GGH:009

crap1004.fr

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