Simmons

David Simmons again appeals the district court’s denial of his 28 U.S.C. § 2254 habeas petition challenging his conviction on two counts of first degree aggravated murder, and one count of conspiracy to commit murder, on the ground that juror misconduct violated his Sixth Amendment right to a fair trial. The district court held that it was bound by the state court’s finding that the juror read one newspaper article that she shouldn’t have read; but as that article contained only background and biographical information about the attorneys involved in the case, the district court concluded that the verdict could not have been affected.

On Simmons’s first appeal, we remanded to let him augment the record with new evidence that the juror had read more than the one article. The district court in turn stayed proceedings to allow the state court to take another look. After an evidentiary hearing, the original trial judge found that Simmons did not carry his burden of showing additional misconduct. Although Simmons appealed that ruling to the Washington Court of Appeals and the appeal is still pending, he asked the district court to lift its stay and resolve his petition. It did,…