and Submitted En Banc March 22, 2017 San Francisco,
from the United States District Court for the Central
District of California, No. 2:10-cv-07927-R-AGR Manuel L.
Real, District Judge, Presiding
Stephanie Adraktas (argued), Berkeley, California, for
William Bilderback II (argued), Stephanie A. Miyoshi, and
Colleen M. Tiedemann, Deputy Attorneys General; Lance E.
Winters, Senior Assistant Attorney General; Gerald Engler,
Chief Assistant Attorney General; Office of the Attorney
General, Los Angeles, California; for Respondent-Appellee.
Before: Sidney R. Thomas, Chief Judge, and Kim McLane
Wardlaw, Raymond C. Fisher, Ronald M. Gould, Marsha S.
Berzon, Johnnie B. Rawlinson, Milan D. Smith, Jr., N. Randy
Smith, Paul J. Watford, Andrew D. Hurwitz and Michelle T.
Friedland, Circuit Judges.
banc court reversed the district court's judgment denying
a habeas corpus petition in which Enrique Anthony Godoy, who
was convicted of second-degree murder, claimed improper
outside influence on the jury.
banc court held that the California Court of Appeal - which
acknowledged juror misconduct and a presumption of prejudice,
but concluded that the presumption was rebutted and refused
to hold an evidentiary hearing - acted contrary to clearly
never requiring the state to rebut the presumption of
prejudice, as required by Mattox v. United States,
146 U.S. 140 (1892), and Remmer v. United States,
347 U.S. 227, 229 (1954);
relying on the same statement from a juror's declaration
both to raise the presumption of prejudice and to rebut it;
requiring Godoy to show a "strong possibility" of
prejudice in order to have an evidentiary hearing, contrary
to the Remmer requirement of a hearing whenever, as
here, the presumption attaches but the prejudicial effect of
the improper contact is unclear from the record.
banc court remanded with instructions that the district court
hold a hearing to determine the circumstances of a
juror's misconduct, the impact upon the jury, and whether
or not it was prejudicial.
FISHER, Circuit Judge:
the most fundamental rights in our system of criminal justice
is the right to trial before an impartial jury. Its common
law origin can be traced back to the Middle Ages. It was
enshrined in the Sixth Amendment to the Constitution, and it
has been embraced by the Supreme Court in numerous cases. The
Court reaffirmed just last year that "the guarantee of
an impartial jury . . . is vital to the fair administration
of justice." Dietz v. Bouldin, 136 S.Ct. 1885,
address a critical safeguard of an impartial jury, protecting
the jury against improper influence from outside parties.
Enrique Godoy - after being convicted by a jury of
second-degree murder - claimed just such an improper outside
influence and moved for a new, untainted trial. Specifically,
he alleged that a juror (Juror 10) had communicated about the
case while it was ongoing with a "Judge up North."
According to an uncontroverted declaration from alternate
juror "N.L., " Juror 10 "kept continuous
communication" with the "judge friend"
"about the case" and passed the judge's
responses on to the rest of the jury.
the troubling questions Godoy's allegations raised about
the jury's impartiality, the California Court of Appeal
upheld the jury's verdict. The court acknowledged that
N.L.'s declaration demonstrated juror misconduct and
raised a presumption that Godoy was thereby prejudiced. The
court concluded, however, that the presumption was rebutted -
not because the state made any showing to disprove prejudice,
but because N.L.'s declaration itself failed to prove
actual prejudice. The California Court of Appeal also
affirmed the trial court's refusal to hold a hearing to
determine whether prejudice in fact had occurred.
state appellate court's decision was contrary to the
clearly established Supreme Court law that the parties agree
governs this case. The Court emphasized long ago that due
process does not tolerate "any ground of suspicion that
the administration of justice has been interfered with"
by external influence. Mattox v. United States, 146
U.S. 140, 149 (1892), called into doubt on other grounds
by Warger v. Shauers, 135 S.Ct. 521, 526-27 (2014).
Thus, when faced with allegations of improper contact between
a juror and an outside party, courts apply a settled two-step
framework. At step one, the court asks whether the contact
was "possibly prejudicial, " meaning it had a
"tendency" to be "injurious to the
defendant." Id. at 150. If so, the contact is
"deemed presumptively prejudicial" and the court
proceeds to step two, where the "burden rests heavily
upon the [state] to establish" the contact was, in fact,
"harmless." Remmer v. United States, 347
U.S. 227, 229 (1954). If the state does not show
harmlessness, the court must grant the defendant a new trial.
See Remmer v. United States, 350 U.S. 377, 382
(1956) (Remmer II). When the presumption arises but
the prejudicial effect of the contact is unclear from the
existing record, the trial court must hold a
"hearing" to "determine the circumstances [of
the contact], the impact thereof upon the juror, and whether
or not it was prejudicial." Remmer, 347 U.S. at
the California Court of Appeal failed to adhere to this
framework in three key respects. First, although the state
court correctly acknowledged at step one that N.L.'s
declaration raised a presumption of prejudice, it never
required the state to rebut that presumption at step two. It
concluded instead that the presumption was rebutted because
Godoy's evidence failed to prove prejudice. But under
Mattox and Remmer, Godoy was not required
to prove prejudice at step two; once he triggered the
presumption, the burden "rest[ed] heavily upon the
[state]" to disprove prejudice. Id. at
229. Thus, in denying relief because Godoy's evidence did
not prove prejudice at step two, the state court acted
contrary to Mattox and Remmer.
setting aside the state court's failure to hold the state
to its burden, it was error for the court to rely on the very
same statement from N.L.'s declaration both to raise the
presumption of prejudice and to rebut it. This defies not
only logic, but also the clearly established definition of a
"presumption." It is well settled that a
presumption can be rebutted only by other, contrary evidence.
It is not enough, as the state court did here, to draw
contrary inferences from the same statement that established
the presumption in the first place.
the California Court of Appeal denied Godoy a hearing on
prejudice under the wrong legal rule. It held he had to show
a "strong possibility" of prejudice, but
Remmer requires a hearing whenever, as here, the
presumption attaches but the prejudicial effect of the
contact is unclear from the record. See id. at
the state court's decision contravened these bedrock
principles, it was "contrary to" clearly
established Supreme Court precedent. 28 U.S.C. §
2254(d)(1). Furthermore, because Godoy established the
presumption of prejudice, but it is unclear from the existing
record whether he, in fact, suffered prejudice, Godoy is
entitled to an evidentiary hearing. We therefore reverse the
judgment of the district court and remand with instructions
to hold a hearing to "determine the circumstances [of
Juror 10's misconduct], the impact thereof upon the
jur[y], and whether or not it was prejudicial."
Remmer, 347 U.S. at 230.
Godoy was convicted of second-degree murder by a Los Angeles
County Superior Court jury. A week before his June 12, 2006
sentencing, he moved for a new trial alleging that Juror 10
had improperly communicated about the case with a judge
friend. Godoy argued that because Juror 10's misconduct
"injected . . . improper considerations into the
jury's deliberations, " "prejudice is presumed,
[and] the prosecutor must rebut the presumption or lose the
verdict." He argued that "once the court is
informed of potential juror misconduct, the court must then
conduct hearings to ascertain whether such misconduct has in
substantiate his allegations, Godoy brought to the June 12
sentencing hearing alternate juror "E.M." The trial
judge, apparently believing E.M.'s testimony would
impermissibly impeach the jury's verdict, refused to hear
live testimony from her, insisting instead that Godoy obtain
a sworn declaration. See Pena-Rodriguez v. Colorado,
137 S.Ct. 855, 861 (2017) (describing the no-impeachment
rule). Moreover, because Godoy had not previously informed
the state he intended to have E.M. testify, the state sought
a continuance to interview her and discover what she had to
trial court put the hearing over to June 29. To facilitate
the state's discovery in the interim, the court obtained
E.M.'s contact information and informed her that the
state would likely contact her for an interview. E.M. gave
her cell phone number and address, and she indicated her
willingness to speak with the state. We do not know whether
the state followed up with E.M., and the state never offered
evidence from E.M. regarding Juror 10's communications.
22, Godoy sent the prosecutor a declaration about Juror
10's misconduct, from alternate juror N.L., who wrote
[d]uring the course of the trial, juror number ten kept
continuous communication with a gentleman up north, who she
referred to as her "judge friend." Juror number ten
explained to us, the jury as a whole, that she had a friend
that was a judge up north. From the time of jury selection
until the time of verdict, juror number ten would communicate
with her "judge friend" about the case via her
T-Mobile Blackberry, a two way text paging system. When the
jury was not sure what was going on or what procedurally
would happen next, juror number ten would communicate with
her friend and disclose to the jury what he said.
state responded to N.L.'s declaration on June 27, two
days before the continuation of sentencing. It offered no
evidence contrary to the declaration. The state argued
instead that the declaration was inadmissible and that it
failed to show juror misconduct in the first place because
the alleged communications involved procedural issues. As to
prejudice, the state simply argued that "the defendant
is unable to show any."
29, the court proceedings reconvened. Although no more
progress was made toward resolving Godoy's allegations,
the trial court denied Godoy's request for another
adjournment and then - without explanation - denied his
motion for a new trial. Neither Godoy nor the state made any
further argument or offered any further evidence ...