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

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, factually unrelated to the trial, with three jurors in the hallway during a break in deliberations.

We exercise jurisdiction under 28 U.S.C. § 2253 and 28 U.S.C. § 1291 . 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. The state trial court did not presume prejudice either, so we review de novo the question whether the government clearly established that the extrinsic contact was harmless. We answer in the negative and, accordingly, grant the petition.

I. FACTS

After a Los Angeles County Superior Court jury convicted him of second-degree auto burglary in violation of California Penal Code section…