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Novelo v. Yates

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION


August 13, 2009

EDWARD H. NOVELO, PETITIONER,
v.
JAMES A. YATES, RESPONDENT.

The opinion of the court was delivered by: Cormac J. Carney United States District Judge

[PROPOSED] ORDER (1) ACCEPTING AND ADOPTING THE REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE, AND (2) GRANTING IN PART AND DENYING IN PART THE PETITION FOR WRIT OF HABEAS CORPUS

Pursuant to 28 U.S.C. §636, the Court has made a de novo review of the Petition for Writ of Habeas Corpus ("Petition"), Respondent's Motion to Dismiss, Petitioner's Opposition to the Motion to Dismiss, Respondent's Answer, Petitioner's Reply, all of the records herein and the Report and Recommendation of the United States Magistrate Judge ("Report").

IT IS ORDERED that: (1) the Court accepts and adopts the Report and Recommendation,(2) relief as to Ground One is granted; (3) Ground Two and Three are denied on the merits; and (4) that a hearing that comports with the requirements of due process be conducted by the trial court on the alleged juror misconduct claim contained in Petitioner's Motion for New Trial within 120 days of the date of entry of judgment.

Although the Court accepts the Report and Recommendation, the Court does have reservations regarding the truth and accuracy of Mr. Gardner's declaration. Mr. Gardner was an interested party. Mr. Gardner suggested that Juror Number 12 read newspaper articles regarding Mr. Novelo a year before the trial, and as a result harbored a bias against Mr. Novelo. Then, the juror apparently lied during jury selection about her exposure to these articles and misrepresented that she could serve as an unbiased juror. Finally, according to Mr. Gardner's declaration, the juror admitted her misconduct to a complete stranger in the hallway outside the courtroom just before closing arguments. The numerous credibility issues raised by Mr. Gardner's declaration should be addressed by the trial court a the due process hearing.

20090813

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