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October 17, 1994

MICHAEL BORJA, Petitioner,
K.W. PRUNTY, ET AL., Defendant.

The opinion of the court was delivered by: JOHN S. RHOADES, SR.

 Pursuant to 28 U.S.C. § 2254, Michael Borja petitions the Court for a writ of habeas corpus claiming he was denied his right to a fair trial because the jury was inadvertently given material showing his prior arrest history. For the reasons stated below, Borja's petition is DENIED.


 A. Procedural History

 On April 3, 1990, Petitioner was charged with first degree residential burglary (Cal. Penal Code §§ 459-60). The government also alleged that Petitioner had a prior serious felony conviction (Cal. Penal Code §§ 667(a), 1192.7(c)(3)). The state trial court granted Petitioner's motion to bifurcate with regard to the prior felony conviction. A jury trial on the burglary charge began on July 6, 1990. The jury found Petitioner guilty of first degree burglary on July 11, 1990. Opp'n at 4.

 Following return of the verdict, Petitioner waived jury trial on the allegation of the prior felony conviction. Approximately one-half hour after adjournment, the court learned that the jury had obtained information from the fingerprint cards unrelated to the case. The reverse side of the fingerprint cards contained information regarding Petitioner's prior arrests. The trial court took testimony that same morning regarding the jurors' receipt of unauthorized evidence. Opp'n at 5.

 On August 17, 1990, the trial court denied Petitioner's motion for a new trial based on jury misconduct. The court then conducted a bench trial on the prior felony conviction allegation and found Petitioner guilty. The trial court sentenced Petitioner to four years in state prison on the burglary charge and to a consecutive five years in state prison on the prior conviction finding. Opp'n at 5.

 On April 17, 1992, the California Court of Appeal, Fourth Appellate District, affirmed Petitioner's conviction. Opp'n at 5.

 Petitioner filed a petition for review with the California Supreme Court on May 27, 1992, alleging denial of his federal constitutional right to a fair trial based on the jury's receipt of extraneous material. The California Supreme Court denied petition for review on July 8, 1992. Opp'n at 5-6.

 B. Substantive Facts

 The government presented the following evidence at Petitioner's trial. On September 19, 1989, Neil Becker heard noises coming from the house of his neighbor, Barbara Dresden. Upon investigation, he saw that the screen on one of Dresden's front windows was open at the bottom and that the window itself was open. When Becker looked inside Dresden's house, he could see that the bedroom was in disarray. Opp'n at 6.

 Becker then went to the back of the building, where he saw an unfamiliar green station wagon parked in the back alley. There were two men in the car and two men standing by a back gate. Becker then telephoned the police department, giving them a description of the vehicle and its license plate number. When Becker returned, the two men by the back gate had disappeared. The station wagon then drove away. Opp'n at 6-7.

 Becker noticed that the back door to Dresden's house was open and some of Dresden's belongings were near the back steps. He did not see anyone inside. Before the police arrived, the station wagon, with the two men still inside, returned and slowly cruised by the Dresden house. This occurred again after the police arrived, at which point an officer followed the vehicle and stopped it. Petitioner's sixteen-year-old brother, Joseph Borja, and another man were inside the vehicle. Becker identified them as the two men he had seen in the car when it was parked in the alley and when it had passed by the house the first time. Upon searching the vehicle, the officer found five $ 2 bills on the floorboard below where Joseph Borja had been sitting. Opp'n at 7-8.

 Alerted by a telephone call, Dresden returned home. Dresden discovered most of her jewelry was missing, as well as her commemorative coin collection which included $ 2 bills. She also identified the items on the back steps as her own. Opp'n at 8.

 Petitioner's thumb print was lifted from the outside of the glass of the open window at the front of Dresden's house. This window was covered by a screen that Dresden testified had been in place the entire time she had lived in the house. Opp'n at 8-9.

 Petitioner did not testify at trial. Petitioner's girlfriend, however, testified on his behalf. As an explanation for the fingerprint, she stated that on the day of the burglary she and Petitioner were out looking for an apartment. While apartment hunting, she explained, Petitioner got out of the car and went up to the homes to look at them. The area in which Petitioner's girlfriend claims that they looked at houses is near the Dresden residence. Opp'n at 8-9, 17.


 State defendants have a federal constitutional right to an impartial jury. This right requires that the jury consider only evidence that is properly presented in open court. Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir. 1986) (citing Turner v. Louisiana, 379 U.S. 466, 472-73, 13 L. Ed. 2d 424, 85 S. Ct. 546 (1966)). When the jury considers facts not entered into evidence, a defendant is effectively denied the rights of confrontation, cross-examination, and the assistance of counsel with regard to that extraneous evidence. Gibson v. Clanon, 633 F.2d 851, 854 (9th Cir. 1980), cert. denied, 450 U.S. 1035, 68 L. Ed. 2d 231, 101 S. Ct. 1749 (1981).

 A. Standard on Collateral Review

 Until recently, the federal courts applied the same standard for determining reversible constitutional error in cases on direct review as they applied in cases on collateral review, or habeas corpus. That standard, based on the United States Supreme Court's holding in Chapman v. California, 386 U.S. 18, 24, 17 L. Ed. 2d 705, 87 S. Ct. 824 (1967), was whether the error was "harmless beyond a reasonable doubt." In the context of jury misconduct, the test as applied is whether there is "a reasonable possibility that the extrinsic material could have affected the verdict." Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir. 1988) (holding that the test is applicable on a ...

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