Patrick James Jeffries v. James Blodgett, Superintendent , 988 F.2d 923 ( 1993 )

ORDER AND DISSENT

In his petition for rehearing, Jeffries again asserts a due process violation in his state trial because of juror misconduct. We reviewed the district court’s treatment of the question initially as an attempt by two jurors to impeach their verdicts by affidavits reciting misconduct in the jury room. The affidavits alleged that a juror had said, during deliberation on the guilt phase of the trial, “Jeffries is a convicted armed robber.”

We agreed with the district court that if, indeed, the alleged misconduct had occurred, the misconduct probably had no influence on the verdict. We agreed with the district court’s application of Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir.1986). Because we held that the district court had correctly applied the Bayramoglu standard, neither court reached the factual accuracy of the affidavits alleging juror misconduct. The State disputed the facts alleged in the affidavits, but for the purpose of habeas review, both courts assumed the truth of the affidavits. The State again challenges both the factual basis of the affidavits and their legal sufficiency to impeach the verdict.

After the filing of the petition for rehearing, we became aware of a possible conflict between our September 9, 1992 opinion in this case and Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988), which does not appear to have been briefed and argued in the district court. In Dickson, we granted habeas relief where two jurors were exposed to an out-of-court communication by a deputy sheriff to the effect that Dickson “had done something like this before.” Because of the similarity of the communication heard by the two jurors in Dickson and the communication alleged to have been made by a fellow juror to two jurors in this case, we conclude that Dickson requires a remand for a factual determination as to the truth of the juror affidavits. If the district court finds that the alleged misconduct actually occurred, then Dickson would appear to require a remand to the state courts.

Accordingly, Judges Goodwin and Farris have voted to grant the petition for rehearing in part; Judge Fernandez would deny the petition for rehearing.

The opinion in Jeffries v. Blodgett, 974 F.2d 1179 (9th Cir.1992), is withdrawn and the attached opinion filed herewith is substituted therefor. The judgment of the district court is vacated and the case is remanded to the district court for further proceedings in light of Dickson v. Sullivan, supra. In all other respects, the petition for rehearing is denied.