Patrick James Jeffries v. James Blodgett, Superintendent

988 F.2d 923 Patrick James JEFFRIES, Petitioner-Appellant, v. James BLODGETT, Superintendent, Respondent-Appellee. No. 91-36017. United States Court of Appeals, Ninth Circuit. Argued and Submitted May 12, 1992. Filed Sept. 9, 1992. Withdrawn March 3, 1993. Decided March 3, 1993. Opinion, 974 F.2d 1179 , superseded. Stephanie Ross, Bellingham, WA, and Brian R. Phillips, Everett, WA, for petitioner-appellant. Paul D. Weisser, Asst. Atty. Gen., Olympia, WA, for respondent-appellee. Appeal from the United States District Court for the Western District of Washington. Before: GOODWIN, FARRIS and FERNANDEZ, Circuit Judges. ORDER AND DISSENT 1 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." 2 We agreed with the district court that if, indeed, the alleged misconduct had occurred, the misconduct probably…

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 ju *929 ror 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…

dissenting to grant of petition for rehearing:

The fact is that the district court did apply our five-part test as set forth in Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir.1986) and specifically determined that, among other things, there was no reasonable possibility that this particular introduction of extrinsic information, if it occurred, affected the verdict. The majority believes that Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988) eliminated the five-part test by elevating the mere receipt of prior offense information to what amounts to a per se rule that requires the overturning of a jury verdict. If so, that case has not only reversed circuit precedent, which it cannot do, but has also created a threat to the stability of jury verdicts that is almost incalculable. I do not believe that Dickson intended to do that, nor do I believe that it did.

If I am correct, the order we now issue imposes an unnecessary burden upon a conscientious district judge and just as unnecessarily impedes finality of a case involving a crime committed and a jury trial held in 1983.

If I am wrong about Dickson , we now leave that loose cannon free to continue its rampage across the decks…

concurring with and dissenting to opinion:

I concur in the opinion except as to the part regarding jury misconduct. Part V., B. and the concluding paragraph. As to that, I dissent.

My reasons are those set forth in my dissent to the order granting reconsideration. The opinion underscores the fears I expressed in that dissent. If certain comments were merely made by a juror, an almost ten-year-old conviction for two vicious murders is to be set aside. That, to my mind, is a travesty.