The opinion of the court was delivered by: Oliver W. Wanger United States District Judge
MEMORANDUM DECISION GRANTING PETITION FOR HABEAS CORPUS
This matter is before the Court following the September 14, 2007 decision of the Court of Appeal, which vacated and remanded this case for an evidentiary hearing upon its finding on the petition for writ of habeas corpus, that: "If the facts in Garza's affidavits are true, then a juror sat at his trial who was biased against him, a situation that gives rise to structural error under the law of this Circuit. See Dyer v. Calderon, 151 F.3d 970, 973 & n.2 (9th Cir. 1998) (en banc).
The Ninth Circuit went on to find that Garza's alleged facts, if true, would entitle him to a new trial. Alberni v. MacDaniel, 458 F.3d 860, 873 (9th Cir. 2006). The case was remanded for an evidentiary hearing.
Petitioner, Roman Garza, was convicted after trial by jury of rape, forcible penetration and forcible oral copulation of V.J. Petitioner was sentenced to ten years in state prison. In accordance with the Court of Appeals' remand, an evidentiary hearing was held July 24-25, 2008 followed by the parties' supplemental briefing.
Based on the evidentiary hearing, the following findings of fact are entered:
1. The juror in controversy, Joan Robinson, based on her inconsistent, argumentative and conflicting answers, is found to be an incredible witness, who lied about whether her daughter Michelle Dockery worked at Petitioner's Los Tejanos Restaurant.
2. Juror Joan Robinson knew, at the time she was questioned as a prospective juror during voir dire, that her daughter, Michelle Dockery, had worked for and been fired by Petitioner after approximately three days' employment at Los Tejanos Restaurant.
3. Juror Joan Robinson knew that her daughter, Michelle, was on probation or parole when Michelle was fired by Petitioner and that Michelle needed to work as a condition of her release.
4. Juror Joan Robinson had, prior to her selection as a juror, once called Petitioner on the phone to request that Petitioner re-hire her daughter at his restaurant.
5. Juror Joan Robinson knowingly lied during the evidentiary hearing regarding whether she had picked up and dropped off her daughter Michelle for work at Petitioner's restaurant.
6. Juror Joan Robinson intentionally failed to disclose during voir dire that members of her immediate family, including Michelle, a son, and two former husbands, all had criminal records.
7. Juror Joan Robinson intentionally failed to disclose during voir dire that she had a brother who once worked in law enforcement for the CHP.
8. Juror Joan Robinson was aware and intentionally failed to disclose in voir dire, that her daughter, Michelle, was once the victim of a sexual assault.
9. Based on these evidentiary findings, it is proved that juror Joan Robinson is unreliable, was purposefully untruthful in answers to questions during voir dire, and her material failures to disclose facts relevant to issues in the underlying trial, caused prejudice to Petitioner as juror Joan Robinson was an impliedly, and actually, biased witness.
10. Based on the totality of her testimony, the reasonable inference is drawn that juror Joan Robinson had animus toward Petitioner based on his firing of her daughter Michelle, Michelle's prior sexual victimization, and Petitioner's rejection of juror Robinson's direct telephonic request to Petitioner to re-hire her daughter, ...