Gregory Dean Caliendo v. Warden of California Men's Colony

Good Law
353 F.3d 1147·2004 WL 42237·63 Fed. R. Serv. 339·2004 Cal. Daily Op. Serv. 207·2004 U.S. App. LEXIS 237
United States Court of Appeals for the Ninth CircuitJanuary 9, 200401-56946California3,437 words

Opinion

Opinion

Hall, J.

Petitioner Gregory Caliendo appeals the district court’s denial of his petition for writ of habeas corpus. He contends that the California Court of Appeal’s decision upholding his conviction was contrary to Supreme Court precedent because the court did not presume prejudice from an incident of juror misconduct. A detective who provided testimony that was crucial to the prosecution’s case had a twenty-minute conversation, unrelated to the trial, with three jurors in the hallway during a break in deliberations. Caliendo also claims his sentence amounted to cruel and unusual punishment under the Eighth Amendment.

We exercise jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 1291 . On the juror misconduct question, we hold that the state appellate court’s decision was contrary to Mattox v. United States, 146 U.S. 140 , 13 S.Ct. 50 , 36 L.Ed. 917 (1892), in that the court did not apply a rebuttable presumption of prejudice, but we nevertheless affirm the district court’s denial of the habeas petition because the government successfully rebutted the Mattox presumption. In addition, we affirm the district court’s denial of relief on the Eighth Amendment question.

I. FACTS

After a…

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