NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 11a0331n.06 No. 09-2457 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

ANTON I O TOL BERT, Petitioner-Appellant,

v. J AN TROMB L EY, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNI TED STATES DI STRICT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

Be fore : MARTI

N and SUTTON , Circuit J udg es; GRAHAM, District Judge. *
SUTTON, Circuit J udg e. When the attorney for Antonio Tolbert g ave his closing arg ument in this drug -distribution case , he met resistanc e from an unlikely source : the jury

. J uror four “looked rig ht at [hi m] ,” R.13-5 at 195, and said, “[D]on’t insult my intelligenc e,” People v. Tolbe r t , No. 2 6 2 7 9 2 , 2 0 0 6 W L 2924577, at *4 (Mich. Ct. App. Oct. 12, 2006) (per curia m). J uror eig ht g ave defe nse counsel “a rea l dirty look,” R.13-5 at 196, and sa id, “I don’t want to hea

r that crap. Bla

h, blah, blah,” Tolbert , 2006 WL 2924577, at *4.

I n cer tain ty pes of Michig an fe lony trials, including this one, fourtee n jurors hear the evidenc e, afte r which the court randomly excuses two of the fourtee n as alterna tes prior to jury delibera tions. Mich. Comp. L aws § 768.18(1). Tolbert’s counsel moved to excuse jurors four and
The Honora

ble J ames L

. Gra

ham, Senior United States District J udg e for the S o u t h ern * District of Ohio, sitting by desig nation.No. 09-2457

Tolbert v. Trombley eig ht as alterna

tes, but the trial court denied the motion, analog izi ng the jurors’ comments to hostile body lang uag e conve y ing the same messag e. The court randomly selec ted t he two alterna tes, and jurors four

and eig ht served on the jury that convicted T olbert.
The Michig an Court of Appea ls a ffirme d his c onviction, a nd the Michig an Supreme Court denied leave to appea l. People v. Tolbert , 728 N.W.2d 450 (Mich. 2007). The fede ral district court reje cted Tolbert’s pro se habea s petition and denied a cer tificate of appea lability

. W e g rante d a
cer tificate on Tolbe rt’s cla im that the trial court should have remove d jurors four and eig ht. Congr ess h as ca b i n ed the availability of fede ral habea s corpus relief “with respe ct to any claim” the state courts “adjudica ted on the merits.” 28 U.S.C. § 2254(d). We have the authority to issue habea s relief as to such claims only if the state courts’ adjudication “(1) resulted in a decision that was contra

ry to, or involved an unrea sonable application of” Supreme Court prec eden t o r “(2) resulted in a de cision that was base d on an unre asonable deter mination of the fac ts in li g ht of
t h e evidenc e prese nted in the State court proce eding .” Id

. Neither party disputes that § 22 5 4 (d ) applies to Tolbert’s c laim.
Tolbert maintains that the trial court denied him “the rig ht to a . . . trial[] by an impartial jury ” and “depr ive[d] [hi m] of

. . . liberty

. . . without due proce ss of law” when it declined to excuse jurors four and eig ht. U.S. Const. amends. VI , XI V. I n deny ing this claim, the state court rea soned that the jurors’ comments “we re mere ly a ‘juror thought proce ss’ that was verba liz ed during trial,”
not that differ ent from expressive body lang uag e and the visual, as opposed to verba l, cues that come
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Tolbert v. Trombley with it. Tolbert , 2006 WL 2924577, at *4. I n the state court’s opinion, the j u ry instruction to consider only proper ly admi t t ed ev i dence mitigated any possible harm, which in any event was insignifica

nt g iven Tolbert’s failure to alleg e that outside influence s aff ecte d the verdic t. Id. I n the final analy sis, the court conclude d, “[t] he jurors’ comments may have been a brea k in the trial court’s decor um, but they

did not deny

defe ndant a f

air trial.” Id.
The short answe r to this c laim is that the Supreme Court ha s not de alt with a ny thing like it befor e. We a

re not a war e of a case in w hich the Court has construed the Constit ution to prohibit a juror who speaks out once during the trial from continuing to sit on the jury

. Neither the parties nor the lower co u rt h ave identified any such case either. We could stop there

. “[I ]t is not ‘an

unrea sonable application of clea rly established Fe dera l law’ for a state court to decline to apply a specific leg al rule that has not been square ly established by th[ e Supreme] Court.” Knowles v. Mirzayance , 556 U.S. __, 129 S. C t. 1411, 1419 (2009).

Even if we construe Tolbert’s claim more broadly , as we sometimes do for pro se litigants,

we cannot envision a cog nizable basis for g ranting habea s relief

. To the extent Tolb er t m ea n s t o arg ue that extra-re cord evidence infec ted t he jury ’s deliber ations, nothing supports the arg ument. The Supreme C o u rt h as confronted alleg ations of juror bias resulting from a litany of outside inf l u en ce s : bribes, Remm er v. United States , 347 U.S. 227 (1954), prejudicia l comments by the bailiff, Parker v. Gladden , 385 U.S. 363 (1966) (per cu ri am), pre- trial publicity , Sheppard v. Maxwell , 384 U.S. 333 (1966), reque sts for a job with the District Attorney ’s office by a juror, Smith

v. Phillips , 455 U.S. 209 (1982), and others, see, e.g. , Turner v. Louisi ana , 3 7 9 U. S

. 4 6 6 (1965); - 3 -No. 09-2457

Tolbert v. Trombley Leonard v. United States , 378 U.S. 544 (1964) (per curia m). Tolbert’s case , howeve r, falls into none of t hese categ ories. He does not identify any outside influence that aff ecte d jurors four and eight, leaving his case at least one step r emoved f rom this line of authority

.
To the extent Tolbert m ea n s t o ar g ue that his case involves “thre ats to the fundame ntal fairnes s of a criminal trial posed by conditions in (or orig inating in) the courtroom,” Carey v. Musladin , 549 U.S

. 7 0 , 8 2 (2006) (Souter, J ., concur ring ), that claim also g oes nowher e. A defe ndant’s trial may be poisoned by a mob, hung ry for a conviction. See Moore v. Dempse y , 261 U.S. 86 (1923). Or it may be overc ome by distr ac t i o n s fr o m news came ras and repor ters interviewing trial participa nts. See Sheppard , 384 U.S. at 355; Estes v. Texas , 381 U.S. 532, 546–51 (1965). Constit utional problems also may arise wher e a “cour t ro om arr ang ement” prese nts “‘a n
unacc eptable risk

. . . of impermissible fac tors coming into play ,’” Holbrook v. Flynn , 475 U.S. 560, 570 (1986), such as where the court “compel[s] [a defe ndant] to wea r i dentifi ab l e prison clothing
at his trial,” Estelle v. W

illiams , 425 U.S. 501, 502 (1976), or binds and g ag s a defe ndant, see Illinois v. Allen , 397 U.S. 337, 342–44 (1970). Ea ch of these case s also is at least one step r emoved f rom Tolbert’s. There is nothing about his trial that prese nted an unacc eptable risk that the jury decide d his guilt based on a

ny thing other

than the evide nce be fore it.

That leads to the last possibili ty (we can think of)—that the jury eng ag ed in pr emature jury delibera tions. I n such cases, courts wo rr y i f the j ury “pre maturely form[s] judgme nts that will be difficult to di s l o d ge l at er in the proce eding s.” United States v. Jadlowe , 628 F.3d 1, 17 (1st Cir. 2010). The first problem with this theory is that the Supreme Court has not enter tained a prema ture- - 4 -No. 09-2457

Tolbert v. Trombley d elibera tions case , making it hard to say that any thing in this are a is square ly established for § 225 4 (d ) p u rposes. The second problem with this claim is that it falls short even under exis ting
court of appea ls prec edents. Two case s prese nt near ly identical fac ts, and in eac h the court reje cted the claim on direct revie w . I n United States v. Gianakos , 415 F.3d 912, 921 (8th Cir. 2005), during the g overnme nt’s prese ntation of evidenc e, one juror mouthed to another , “he’ s g uilty .” Given the presumption that jurors impartially apply the law t o t h e ev i d en ce befor e them and g iven that Gianakos of

fer ed “no a lleg ations of ex terna l influence on the j ury ” rebutting the pr esumption, the
court of appea ls aff

irmed Gianakos’ conviction. Id. at 921–22. The Eig hth Circuit likewise did not disturb the conviction in United States v. Caldwell , 83 F.3d 954, 956 (8th Cir. 1996), wher e during the trial one juror said, “I ’ve hear d all of this I need to he ar,” and another said, “this is just a bunch of cra p.” Caldwell offe red no rea son to doubt that the jury came to its verdic t based on any thing but the trial evide nce, pr ompting the c ourt of appe als to aff irm. Id.

I n the end, we see no path by which Tolbert can obtain relief

. The Supreme Court’s “ca ses g ive no clea

r answe r to the question prese nted, let alone one in [Tolbert’s] favor ,” making it difficult
to hold “that the state court unrea sonably applied clearly established Feder al law.” W right v. Van Patten , 552 U.S. 120, 126 (2008) (a lterations and quotation mar ks omitt ed).

For these re asons, we a ffirm.

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