Xiong v. Felker

Under the Antiterrorism and Effective Death Penalty Act (AEDPA), a denial of a writ of habeas corpus challenging a state court conviction will only be reversed if the decision is contrary to, or an unreasonable application of, federal law; or if the decision was based on an unreasonable determination of the facts.

Tong Xiong was convicted of second degree murder, and sentenced to 15 years to life with a consecutive term of 25 years to life for a firearm enhancement. During trial, jury members observed and discussed a witness for the defense in the hall behaving in a way contrary to his testimony. In addition, Xiong's counsel elicited an unfavorable response from an expert witness at trial. Xiong filed a petition for writ of habeas corpus for ineffective counsel and jury misconduct after the California Court of Appeals denied his motion for a new trial and affirmed the conviction. The Ninth Circuit concluded not all extrinsic contact with witnesses is prejudicial, and Xiong's due process rights were not violated because he forfeited the claim by not raising it at trial or on appeal. In addition, the Court explained there is a presumption of prejudice when extrinsic evidence finds its way to the jury, but that presumption may be overcome by a showing that there was no harm to the defendant. The Court held that observations of the witness were not objectively likely to have influenced the verdict because the witness's credibility was already impeached by contradictions between his testimony at trial and earlier statements to the police. A claim for ineffective counsel must show: (1) counsel's performance was objectively below the reasonableness standard, and (2) the defendant suffered a prejudice that likely created a different result. The Court concluded that a failed attempt to elicit a particular response from a witness does not rise to the required level of incompetence to show ineffective counsel. The Court ruled that the Court of Appeals correctly applied precedent, so the denial of Xiong's motion for a new trial was not the result of an objectively unreasonable application of federal law. AFFIRMED.