Patrick James Jeffries v. James Blodgett, Superintendent

5 F.3d 1180 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 Withdrawn March 3, 1993. Filed March 3, 1993. As Amended on Denial of Rehearing and Rehearing En Banc Sept. 21, 1993. Stephanie Ross, Bellingham, WA, 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 1 The opinion and dissent filed March 3, 1993, slip op. 1841 and appearing at 988 F.2d 923 (9th Cir.1993) are amended as follows: 2 With the opinion and dissent thus amended, Judges Goodwin and Farris have voted to deny the petition for rehearing. Judge Farris has voted to reject the suggestion for rehearing en banc, and Judge Goodwin so recommends. Judge Fernandez would grant the petition for rehearing, and has voted to accept the suggestion for rehearing en banc. 3 The full court has been advised of the suggestion for rehearing en…

ORDER

The opinion and dissent filed March 3, 1993, slip op. 1841 and appearing at 988 F.2d 923 (9th Cir.1993) are amended as follows:

With the opinion and dissent thus amended, Judges Goodwin and Farris have voted to deny the petition for rehearing. Judge Far-ris has voted to reject the suggestion for rehearing en banc, and Judge Goodwin so recommends. Judge Fernandez would grant the petition for rehearing, and has voted to accept the suggestion for rehearing en banc.

The full court has been advised of the suggestion for rehearing en banc and no active judge has requested a vote on whether to rehear the matter en banc. Fed.RApp.P. 35.

The petition for rehearing is DENIED and the suggestion for rehearing en banc is REJECTED.

Patrick James Jeffries appeals the judgment which denied his petition for a writ of habeas corpus. He was convicted in the State of Washington and sentenced to death on two counts of aggravated first-degree murder. The district judge carefully considered the 18 alleged constitutional violations asserted in the petition and explained, in detail, why none required federal intervention. Jeffries v. Blodgett, 771 F.Supp. 1520 (W.D.Wash.1991). We agree with the…

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.

The question with which we are presented is a narrow one: if a juror has heard an assertion that a person on trial for murder and robbery was previously convicted of armed robbery, is that juror so tainted that the verdict must be overturned? Our dispute is similarly narrow, but exceedingly important. The majority, relying on Dickson and on its own independent reasoning, says that the answer is “yes” and when faced with those two facts sweeps away all other considerations. I say, not necessarily, and that we must still decide whether there was an effect *1199 on the verdict under all of the circumstances of this case.

The majority opinion underscores the fears that I have expressed in a dissent to its earlier order granting reconsideration. Slip op. 1841 at 1844-45 (9th Cir. March 3, 1993). If certain comments were merely made by a juror, an almost 10 year old conviction for two vicious murders will be set aside. That, to my mind, is a travesty.