The opinion of the court was delivered by: Gregory G. Hollows, United States Magistrate Judge
Petitioner is a state prisoner proceeding with appointed counsel with a petition for writ of habeas corpus pursuant 28 U.S.C. § 2254. On July 21, 2008, the district judge assigned to this case adopted the findings and recommendations and petitioner's writ was denied. Petitioner brought three claims: 1) juror misconduct; 2) prosecutorial misconduct; and 3) ineffective assistance of counsel. The ineffective assistance of counsel claim concerned counsel's failure to object to the alleged prosecutorial misconduct and to properly investigate the alleged juror misconduct, both claims which are the substance of the remainder of the petition.
The prosecutorial misconduct claim was denied on the merits by the court as was the ineffective assistance of counsel claim related the prosecutorial misconduct. The court held that the ineffective assistance of counsel claim related to failure to investigate the juror misconduct was barred by the statute of limitations. While respondent argued that the separate juror misconduct claim was procedurally defaulted, the court addressed the procedural default issue but looked to the merits of the juror misconduct claim and denied the claim in its entirety.*fn1
Regarding one component of the juror misconduct claim, where a juror later stated in a declaration that jurors considered sentencing while deliberating, the court found that nothing in the record suggested that the information regarding possible sentences came from an outside source. Rather, the jurors were speculating about what sentence petitioner might receive. Therefore, the juror's declaration was inadmissible, and the claim was denied.
Petitioner appealed and on August 3, 2010, the Ninth Circuit reversed in part, affirmed in part and remanded the case back to the district court.*fn2 The Ninth Circuit found that the district court erred in finding the ineffective assistance of counsel claim based on the failure to investigate jury misconduct was barred by the statute of limitations. The Ninth Circuit held that the claim was timely.
The Ninth Circuit also stated that the jury misconduct claim that there was speculation about petitioner's sentence and related ineffective assistance of counsel claim still may be procedurally barred from federal habeas review, which must be briefed and addressed. The Ninth Circuit held that if the claims are not procedurally barred, 'some' of the evidence about what members of the jury heard about sentencing from other members of the jury is extrinsic and is therefore admissible.
The Ninth Circuit then stated that the district court properly denied on the merits the juror misconduct claim concerning discussion of petitioner's incarceration and the remaining juror misconduct claims were similar (which the district court also denied on the merits). The Ninth Circuit then proceeded to say that the district court must determine whether these remaining juror misconduct claims are procedurally defaulted before ruling on the merits.
Within twenty-eight days from service of this order both parties shall brief the issues set forth by the Ninth Circuit and how they wish the court to proceed.
Accordingly, IT IS HEREBY ORDERED that the parties shall brief the issues set forth by the Ninth Circuit as discussed above within twenty-eight days of service of this order.