Enrique Godoy v. Marion Spearman

weigh Although we do not here rassed.5 GODOY, Enrique Anthony against Tindell’s need for complaints

these Petitioner-Appellant, bring legitimate grievances information about whether the or come to conclusion retaliatory, discipline was Tindell’s disci- SPEARMAN, Respondent- Marion warranted under the pline could have been Appellee. policies. and existing rules No. 13-56024 arbitration, may BMWED be able to Appeals, United States Court of reliance on the show that BNSF’s CBA Ninth Circuit. pre- of conduct was and associated rules union might textual. The also be- able September and Argued Submitted “unjust,” prove discipline Pasadena, California 2015— However, by the CBA. prohibited which is August Filed themselves, allegations, in and of do such major not this case into a dis- transform lawfully subject can

pute that be made If of a strike. both sides have non-frivolous interpretation positions regarding the existing agreements pol- application icies, RLA dispute is minor under the ConRail, and must be resolved

through arbitration.

CONCLUSION reasons, foregoing judgment For the of the district court is AFFIRMED. purpose explaining 5. BMWED also contends that the district was submitted for the action, court abused its discretion when it heard why disciplinary chose to take BNSF complaints evidence about from Sahlstrom’s complaints whether were ac- Sahlstrom's BNSF officials and not from Sahlstrom him- self, curate as a matter of fact. See Fed. R. Evid. grounds testimony on the that such 801(c) (defining hearsay part as a state- ‘ hearsay.” madmissable double We conclude party "a the truth of the mat- ment offers for that the district court did not abuse its discre- tion, statement”). ter asserted in the testimony of BNSF officials Before: F. DIARMUID O’SCANNLAIN, RAYMOND C. FISHER, BYBEE, and JAY S. Circuit Judges. by Judge

Dissent FISHER

OPINION

O’SCANNLAIN, Judge: Circuit appel- We must decide whether a state late court’s affirmance of conviction for murder, degree along second with its deni- request evidentiary hearing al of a for an continuance, to, contrary and for were of, application involved an unreasonable clearly established federal constitutional law.

I A Enrique Godoy and several friends were standing balcony apartment on the of his Pacheco, Angeles in Los when Chasen acquaintance Godoy, appeared below. Pacheco had been a friend until a recent marijuana, dispute over and asked “to come downstairs so he could talk to There, Godoy him.” and Pacheco started on wrestling grass throwing and punches at each other.

- fight, soon up friends broke friend, Voegeli,.grabbed and one Brett Go- doy him pulled up and the stairs. Pacheco Godoy, imploring continued to talk to him fight.” go back down “to finish the Eventually, Godoy’s Rodolfo Her- friend Stephanie (argued), M. Adraktas Berke- nandez, nearby, Godoy say, standing heard California, ley, for Petitioner-Appellant. “Let me finish him off.” Stephanie Miyoshi (argued) top A. When Pacheco reached the of the Col- Tiedemann, stairs, intervene, Attorneys M. but Pa- Deputy Voegeli leen tried General; Winters, way him pulled Lance E. Senior Assis- checo out of the and said General; had Attorney Engler, Godoy, tant Gerald “Let’s finish this.” Pacheco General; Attorney try to hit nothing Chief Assistant Kamela in his hands and did Harris, California; instead, Godoy, up?” D. Attorney General of asked “What’s General, Attorney Godoy then Pacheco three times Ange- Office of the Los stabbed les, California, him punched and stomach and Respondent-Appellee. the chest said, discovery of witness statements up” “That’s tled to what’s

in the face. offer, contin- and, of here.” Pacheco defense would and therefore the fuck out “Get 29th. hearing again the stab wounds. to June later died from ued 22, Godoy’s counsel sent the On June B from a second prosecutor declaration course, County Angeles a Los In due as N.L. This juror, alternate referred to Godoy of jury convicted Superior Court trial, during Juror declaration stated An initial sentenc- degree murder. second with her exchanged messages text place April ing hearing took The declaration stated “judge friend.” requested a Godoy’s counsel whereupon what was jury was not sure “[w]hen prepare a motion forty-day continuance hap- going procedurally on or what would granted trial. The trial court for a new next, juror would commu- pen number ten continuance, set a new date and disclose to the nicate with her friend 12th. The court also instructed for June these response he said.” In what prosecutor counsel to serve the defense a second allegations, prosecutor filed by May motion 30th. with his Godoy’s motion supplemental response to date, Godoy’s week after the due One that N.L.’s for a new trial. She asserted trial and filed his motion for new counsel that the commu- statements demonstrated motion, prosecutor. In that served “judge 10 and her nications between Juror that among complaints other he asserted only procedural matters friend” concerned trial, Godoy’s in jurors active one of the jury’s than matters relevant to the rather committed misconduct labeled Juror 10, or the verdict. deliberation person referred to as “conferring] with 28th, day before the sched- On June one up subsequent North.” In a re- Judge hearing, Godoy’s counsel filed a mo- uled opposing motion sponse prosecutor’s to the thirty-day requesting tion an additional trial, that he Godoy’s a new counsel stated required He stated that he continuance. testimony “present live witness would additional continuance because he was this jury panel from at the declarations [sic] case, in murder “engaged trial” another 8th, hearing.” prose- time of On June prosecutor filed her sec- and because discovery on wit- requested cutor response Godoy’s motion—the re- ond planned calling nesses the defense on argu- surprise to defense counsel’s sponse Godoy’s counsel upcoming hearing. previous hearing he ments —while stated that he would fax the names of such motion, opposed in trial. The state was day, witnesses that but failed do so. Godoy’s adequate had arguing that counsel hearing, Godoy’s 12th coun- At the June prepare. time to jurors told sel claimed that two alternate day, the court hearing At the the next juror him that “there was a who was text motion to contin- denied defense counsel’s messaging speaking judge up with a time, finding hearing for a third ue the during north” trial. He stated one legal cause stated.” that “there no [was] jurors, an referred to in these alternate exchange, repeatedly the court During this E.M., ready present the record as Godoy’s counsel whether he had asked for a con- testify. prosecutor The asked to the affidavits or evidence relevant more tinuance, Godoy’s counsel pointing out like juror issue that he would misconduct expected not disclosed the names and had was “not present. stated he Counsel prom- testimony potential witnesses as busy with because he had been prepared” requires. ised and as law California N.L.’s Having trial. considered was enti- the other prosecutor court ruled that the along arguments previously affidavit D by Godoy’s prose- offered counsel and the On Godoy October filed his cution, judge Godoy’s the trial then denied petition. federal habeas After accepting trial. motion for new findings and magis- recommendation of the judge, trate the district court denied the C petition May 2013. The district court Godoy appealed his conviction to the Godoy also denied appeala- certificate of California of Appeal, arguing bility. denying the trial court erred in the motion timely filed a appeal, notice of for a new trial on the basis of mis- granted Godoy’srequest we for a cer- appeal pend- conduct. While his direct appealability tificate of the issues ing, Godoy petition also filed for writ of appeal. raised this corpus habeas part the same court. As petition, Godoy his habeas included an II additional declaration from E.M.—the al- ternate Godoy’s lawyer brought un- A announced to the first well as —as We review de novo a district supporting declarations from § court’s denial of a corpus habeas appellate counsel and counsel. E.M.’s dec- petition. Lopez Thompson, laration elaborated on alleged Juror 10’s (9th 2000) (en banc). Cir. Be “judge misconduct with her up friend” E.M., north. cause According petition Juror 10 texted filed his April after her friend to ask what happen would the Antiterrorism and Effective trial judge after the informed the (“AEDPA”) that Death Penalty governs Act re he had to procedure. leave for a medical Ollison, view of his claims. Estrella v. E.M. also asserted Juror 10 received Under AED advice from “judge her friend” to write the PA, adjudicated when a state court has in attempt note to be merits, claim on the may district court jury duty. excused from grant not petition habeas unless the adjudication state 18, court’s of the claim: 2009,

On March the California Court of Appeal judicial took notice of the record (1) in a resulted decision that was con- Godoy’s appeal submitted with direct to, trary or involved an unreasonable denied request to consolidate his of, application clearly established petition habeas appeal. and his direct law, by Federal as determined Appeal Court of then denied his habeas States; Supreme Court of the United merits, petition concluding on the that Go- doy had prima to state a “fail[ed] facie (2) resulted in a decision that was based case for day, relief.” That same on direct on an unreasonable determination of appeal, the Court of affirmed Go- light pre- the facts of the evidence doy’s unpublished opinion. conviction in an proceeding. sented the State court petitions filed for review of both 2254(d). § 28 U.S.C. Court, decisions in the Supreme California 8, summarily “contrary which were A decision is July denied on to” Su 2009.1 preme precedent where “the state Court Godoy subsequently 1. filed another habeas additional claims unrelated to those certified review, petition Supreme in the analy- California Court. for our it is not relevant to our However, petition because that raised sis.

1084 2004)). 992, (9th opposite a conclusion to F.3d Under this court arrives at 999 Cir. “ Supreme] on a that reached Court prong, question [the ‘not whether a if the state decides question of law or court federal the state court’s de- court believes .than differently Supreme] [the a case termination was incorrect but whether that materially on a set indistin Court has determination was unreasonable —a sub- ” Taylor, v. 529 guishable facts.” Williams stantially v. higher threshold.’ Hibbler 1495, 413, 362, 146 L.Ed.2d U.S. S.Ct. (9th Benedetti, 1140, 1146 693 F.3d Cir. (2000). unreasonably ap A state 2012) Landrigan, (quoting v. Schriro if it plies clearly established federal law 465, 1933, U.S. L.Ed.2d S.Ct. rule governing legal “identifies the correct “ (2007)). daunting This is ‘a stan- unreasonably applies ... the facts but dard-one that will be satisfied relative- prisoner’s particular state case.” ” Hernandez, ly few 750 F.3d at 857 cases.’ — Woodall, -,U.S. 134 S.Ct. White v. 999). (quoting at Taylor, 366 F.3d (2014) 1697, 1705, (quot L.Ed.2d 698 Williams, 407-08,120 ing 529 U.S. B application unreasonable “[A]n assessing a state court’s de When from an law is different incorrect federal termination, ‘to the last Williams, “we look reasoned law.” application of federal Likewise, finally decision’ that resolves the 120 S.Ct. claim Supreme Gonzalez, refusal to extend state court’s issue.” v. Amado not an Court unreasonable precedent 2014) (quoting Ylst v. White, application precedent. See Nunnemaker, 501 U.S. 111 S.Ct. Ultimately, at 1706. state “[a] (1991)). 2590, 115 L.Ed.2d 706 does that a court’s determination claim lacks attempt pinpoint which state court precludes merit federal habeas relief so his decision serves as the basis for habeas jurists long disagree as fairminded could Instead, arguments claim. he levels at both of the on the correctness state court’s deci opinion Appeal’s the California Court Richter, Harrington sion.” direct review as well as its one-sentence (2011) 770, 178 L.Ed.2d 624 petition. denial of his habeas Because the (internal omitted). quotation marks “If this summarily California de meet, standard is difficult is be decisions, nied of both we must review it was meant be.” Id. at cause summary “look through” these denials to S.Ct. 770. uncover decision the last reasoned on the 2254(d)(2)’s § factual de Under Adams, merits. v. See McCormick 621 prong, adjudicated termination “a decision 970, (9th 2010); Ayers, F.3d Gill v. 976 Cir. court on the merits in a state and based on (9th 911, 917 n.5 Cir. a will factual determination not be over impossible It is if not difficult deter- objective grounds turned on factual unless Appeal mine which de- California Court ly light unreasonable the evidence decision in this cision the last reasoned presented in state-court proceeding.” case, Appeal affirmed since Court Cockrell, 340, 322, v. 537 Miller-El U.S. Godoy’s denied his conviction and habeas (2003). 1029, 123 L.Ed.2d A S.Ct. 154 931 said, day. That we petition on the same unreasonably state court determines “ petition doubt the habeas denial of ‘process by the employed facts where the a properly can considered reasoned de- be defective,’ finding or ‘if state court is no ” cision, that had since it states by the state court all.’ Her made prima a facie Holland, 843, “fail[ed] to state case for nandez v. 750 857 2014) Pinholster, Maddox, Taylor v. relief.” v. 563 U.S. (quoting 366 See Cullen n.12, 170, 1388, 1402 contrary unreasonably 179 L.Ed.2d acted to or applied (2011) a state court’s deter (equating clearly established federal law in determin- mination that “the claims made th[e] ing that the trial judge required was not prima facie petition do not state case conduct an hearing. additional to relief’ with a entitling petitioner

summary (quoting on the merits denial A Clark, re 750, 770, Cal.Rptr.2d 5 Cal.4th argues first that he is entitled to (1993))). 509, Thus, 855 P.2d 729 we ask presumption of prejudice under Rem- Appeal’s whether decision Court mer, Mattox, Turner, and that affirming Godoy’s conviction direct re California Court of unreasonably that egregious transgressed view was so applied clearly established federal by law AEDPA’s demanding standards. failing place the burden on the govern- ment.

Ill Sixth and Under Four Amendments, teenth criminal defendant Supreme Court’s first and rather right by impartial has the to be tried oblique concerning statement a presump- Const, VI; jury. See U.S. Turner v. amend. of prejudice tion triggered egregious Louisiana, 472-73, U.S. S.Ct. juror misconduct occurred more than a (1965) (applying 13 L.Ed.2d Mattox, century ago. In pre- defendant right Sixth Amendment to the States via stating sented that Amendment). affidavits a bailiff the Fourteenth Consistent jury told the that the defendant on trial for that guarantee, Supreme Court already murder had applied peo- has killed two other misconduct, certain kinds of but has and that ple had read a newspa- presumption may also stated that such be per article asserting the evidence government rebutted where the demon against the was so strong defendant ju strates that illicit contact with the “lucky he would be a man” if found inno- Remmer v. harmless. See United ror was cent. 146 U.S. at 13 S.Ct. 50. The States, 227, 229, S.Ct. 98 Court held trial erred in refusing States, (1954); Mattox United L.Ed. 654 allegations to consider these and reversed 140, 150, 13 146 U.S. 36 L.Ed. 917 conviction, stating defendant’s (1892). An line of overlapping communications, “[p]rivate possibly preju- precedent has indicated due dicial, jurors persons, between and third or “a process also requires [to be] witnesses, charge, the officer are prevent prejudicial ever watchful to occur forbidden, absolutely and invalidate the rences and to determine effect of such verdict unless their harmlessness is made Smith v. they happen.” occurrences when Id. 150,13 appear.” S.Ct. 50. Phillips, later, fifty years Some the Court refined see (1982); also L.Ed.2d 78 the Mattox rule when considering a similar 229-30, 347 74 U.S. at S.Ct. 450. This misconduct Remmer. juror in instance of interpret appeal requires prec us to these There, an individual later found to be a (1) edents in order to determine: whether jury the friend of the accused told foreman Appeal the California Court of unreason by bringing he in a profit that “could ably applied clearly established federal law verdict” defendant. favorable to the 347 by concluding government that the had 450; Remmer v. 228-29, U.S. at 74 S.Ct. presumption prejudice; rebutted a of and (2) States, United 350 76 S.Ct. whether the California Court U.S.

1086 II). (Remmer (1956) meals, 468-69, 425, lodging. and at 100 L.Ed. 435 U.S. reported the incident to jury Supreme The foreman 546. held S.Ct. Court that requested in turn judge, the trial who kind of “continuous and intimate associa- Remmer, FBI. investigation by the triggered prejudice tion” a 228, ques- at 450. The FBI U.S. 74 S.Ct. prejudice because of the “extreme inherent juror tioned the about the incident but in continual association between the th[e] with report shared its the and jurors key pros- and ... for the witnesses the prosecutor, the who concluded that 473, ecution.” Id. at 85 S.Ct. 546. Id. likely jest. in communication was made value, Reading these cases at face we the learned of the com- When defendant skeptical clearly are that of them es subsequent investiga- munication and the allegations tablish that the contained in tion, brought motion for his counsel a a pre N.L.’s declaration entitled to a the trial court with- new which denied sumption prejudice under estab Mattox, hearing. Citing Supreme out a the law. Remmer presumed lished federal hearing for a and ob- Court remanded underlying where the conduct case, any pri- a criminal “[i]n served allegation outright a involved credible juror ... dur- vate communication with a See United States Dut jury tampering. matter before ing pending a trial about the (9th kel, 1999) 894-95 Cir. is, reasons, jury for obvious deemed (distinguishing jury tampering from “more that such presumptively prejudicial,” but jury prosaic kinds of misconduct” and con presumption may rebutted where “the be Court Rem- cluding Supreme “the establishes], ... after notice Government mer announced special dealing a rule with defendant, that to and of the such Moreover, jury tampering”). unlike the was harmless.” Id. juror with contact communications at issue in either Mattox Mattox, (citing at Remmer, or N.L.’s declaration contained 50). 148-50, Following at 13 S.Ct. U.S. allegation alleged no that the contact be required hearing at the district court a up tween Juror 10 and the north” certiorari, “judge petition for subsequent Su- concerned “the matter pending the case before the preme again Court considered government jury” Godoy’s guilt that the such innocence concluded failed or or Remmer, carry demonstrating its burden a verdict the should render. bribery juror’s offer did affect Mattox 450; 347 U.S. 74 S.Ct. II, juror.” as a “freedom action 142-43, 13 Admittedly, 50. we Mattox’s, 425.2 have held that presumption of a prejudice may apply irrespective of com Turner, Supreme Court held that content munication’s where unautho rights constitutional had a defendant’s juror rized communication is “between key been violated when the witnesses Calien party.” and a witness interested prosecution murder local sheriffs— —two Colony, do v. Warden Cal. Men’s charged providing were also for the daily including jury’s transportation, needs But even this case, During subsequent investigation its initial consideration of district court's made speculated plain "[t]he that the F.B.I. interview was not in fact Rather, sending agent prejudice. midst of an F.B.I. in the source of it was ini- bribery investigate juror trial to as to his conduct is tial offer that rendered the "a man,” very impress apt bound and is disturbed and troubled F.B.I. unduly.” merely "disperse do so U.S. at interview failed cloud II, by” Having granted a U.S. S.Ct. 450. certiorari second created this offer. Remmer 350 at time, however, 381-82, that 76 the Court observed S.Ct. 425.

1087 to a ruling Godoy, presumption is little since the entitled of help un- allegedly der established “judge up responded north” who federal law. was neither a texting 10’s witness to Juror 2 in trial. Godoy’s otherwise interested

nor juror by misconduct alleged does the Nor Even assuming presumption a of Godoy involve a “continuous and intimate case, prejudice applies however, in Godoy’s anyone a between and association” we little holding trouble that Turner, Godoy’s in trial. participating Appeal’s analysis California Court of did S.Ct. 546. U.S. “Section unreasonably apply clearly not established 2254(d)(1) instances provides remedy a by federal law concluding government unreasonably which a ap- in state court presumption. had rebutted the this Court’s it does not plies precedent; Godoy’s claim, considering When state to extend that require prece- courts Court of first noted that under or dent license federal courts to treat “[j]ury California law misconduct raises a White, to do so as error.” 134 S.Ct. failure prejudice,” presumption rebuttable at 1706. Godoy’s assessed claim in section of its Subsequent argument in opinion entitled “Juror Misconduct: Pre- case, however, Tarango our decided Court Prejudice.” sumption The court also 2016). McDaniel, v. identified no uncertain terms that Go- Tarango, we that “com- stated Mattox doy’s argument on his centered assertion a criminal court to pels consider judgment that “the be must reversed be- any effect external prejudicial contact People cause the did rebut pre- not th[e] that has a to influence the ver- ‘tendency’ sumption,” responded by concluding Mattox, (citing dict.” Id. at 1221 U.S. government that the indeed had carried its 150-51, We held further burden. The court first observed—in ac- a tendency to influence the verdict with government’s argument cordance per triggers exists se and N.L. per- the trial court—that had no prejudice whenever there is “unauthorized knowledge sonal deliberations due contact external between Moreover, as an his role alternate. government agent, position whose official court that although noted N.L.’s declara- question ‘beyond great weight carries Juror vaguely tion asserted that 10’s com- ” jury.’ (quoting Id. at 1223 Parker v. questions munications involved about Gladden, 363, 365, on,” going ambigu- “what was neither that (1966) curiam)). (per 17 L.Ed.2d 420 nor anything ous assertion else N.L.’s question actually ‘judge We the correctness of Taran- declaration stated “the especially broad go’s holding, light prejudi- friend’ communicated information Godoy “low- Supreme prosecution. Finally, Court’s admonitions to cial to” or the that, er courts—and the Ninth Circuit in the court reasoned when read in the partic- against ‘framing precedents light, our suggested fairest N.L.’s declaration ular — ” high generality.’ by ... a level v. information furnished Lopez Juror — Smith, U.S.-, 4,1, “judge “procedural 190 10’s friend” related curiam) (2014) matters,” (per (quoting Godoy’s guilt L.Ed.2d Ne- or innocence. — Jackson, U.S.-, record, any plain reading S.Ct. On of the vada (2013) (per said that 186 L.Ed.2d cannot be misallocated curiam)). unreasonably ap- Because are bound Taran- we burden however, plied precedent. go, we assume short, nothing of of In in Remmer else- the text the Court or spite of clear the Godoy argues that

Appeal’s opinion, establishing close to that the where comes presumption the of application court’s Appeal “beyond California erred Court unreasonably applied Supreme prejudice any possibility disagree- for fairminded not the did precedent because court concluding government ment” that the ar- testimony.” “take The dissent likewise the had satisfied its burden on the basis of was gues the court’s decision that state existing Harrington, record. govern- the contrary to Remmer because 770. The Court “con- ment failed to introduce additional unreasonably apply clearly not estab- did Those trary evidence.” Dissent concluding pre- law in the lished federal nor arguments also fail. Neither Remmer sumption had been rebutted. that any requires govern- case the other testimony new ment other present prej- presumption

evidence to rebut the Indeed, juror by udice misconduct. created that, argues next even government is says only that the granting Appeal applied that the Court of ... con- required to “establish that [the] consistent with presumption juror says tact with the was harmless” —it law, it clearly established federal nonethe the any requirement that nothing about unreasonably less determined the facts be government present affirmative evidence it to “inexplicably” cause failed consider presumption. to the rebut appeal the on direct additional evidence 450; Mattox, 229, 74 see also U.S. at petition, that offered in his habeas only (stating merely the “speculated” and instead about that is rebutted where presumption the alleged harmlessness of Juror 10’s miscon juror the misconduct] “harmlessness [of Again, disagree. duct. we appear”). made to points The dissent to RemmePs observa- Appeal clearly The Court that stated the heavily tion that the rests on “burden it limited N.L.’s its discussion to declara- that clearly establishing Government” only tion this “the evidence government present to must evidence People court.” See [trial] before carry 1096. But its burden. Dissent at Waidla, 690, Cal.Rptr.2d 22 Cal.4th compel Remmer does not the dissent’s (2000)(observing “[appel- 996 P.2d that means the government conclusion this jurisdiction cor- late is limited to four heavy produce to evi- maintains burden ners of record on [underlying] appeal” dence claim of to defeat the defendant’s (quoting Carpenter, In re 9 Cal.4th ob- contrary, To the misconduct. (2000))). Cal.Rptr.2d 889 P.2d quite reasonably can be read servation Furthermore, even if the court were government mean a burden bears expanded considered record— persuade the was no there which, incidentally, considering when did Thus, prejudice. if the court cannot deter- petition— rejecting habeas alleged mine prejudice, the nature of the in the there would have been no difference goes means that the tie result. The differences between that does mean defendant. But Ap- record before California Court of government by ferret- prevail only can on peal direct review and habeas review (as evidence, ing out new rather than were declaration of alternate here) already pointing done evidence supporting E.M. and declarations of contradicts existing within the record that appellate Contrary Godoy’s counsel. prejudice. notion assertion, however, evi- this additional l nothing adds to claim. dence his already As we explained, in Rem- the same E.M.’s declaration contained mer the Supreme Court found a criminal N.L.’s, allegations stating broad to an right impartial defendant’s jury was trial,” “throughout that Juror 10 terms a trial violated where court dismissed alle- “about the with her communicated “ case” gations juror misconduct after an ex N.L., ‘judge up Mend’ north.” unlike Yet parte prosecutors. Remmer, meeting also recounted the specifics E.M. sever- 228-29, 347 U.S. at 74 S.Ct. 450. In that al between 10 and communications Juror context, Court sensibly held E.M., “judge Mend.” to According her that a trial court “should' not decide and judge 10’s Mend that she “Juror told her take final ex parte,” action but instead give write a note to Sheldon Judge should circumstances, should “determine the that she would be from so excused impact upon juror, thereof and wheth- duty. Juror 10 did write a which she note prejudicial, er or not it hearing in a Similarly, gave Judge Sheldon.” E.M. parties with all permitted interested that “jurors stated when learned that 229-30, Id. at participate.” 74 S.Ct. 450 Judge Sheldon had to leave for medical added). (emphasis We have observed else- procedure!,] judge Juror 10’s Mend told where that a holding “provides such little if judge absent, her that our trial be had to prospective guidance hearing as to when place. that another would his take required even appropriate.” Sims v. That, fact, occurred.” We fail see how Rowland, the court’s decision constituted unrea- 2005). Indeed, “plausible reading posits facts, espe- determination of sonable the Remmer Court merely con- cially high- when the additional evidence parte demned the ex manner in which the lighted Godoy further bolsters trial judge prosecutor and the handled the court’s conclusion that such communica- knowledge situation without the of the de- were not a prejudice. tions source of counsel.” fendant or his Id. Because the Court of did not act v. Phillips, Smith a defendant contrary to or unreasonably apply clearly claimed that his convictions multiple analyzing established federal law when attempted counts of murder and murder Godoy prejudice, is not entitled to relief on juror should be vacated because a in his ground. this an application

case had submitted to work B investigator as an the district attorney’s office. 455 U.S. Fol- argues next Court of verdict, lowing attorney district clearly Appeal unreasonably applied estab- juror’s application learned of the and in- lished federal law when it concluded court formed the trial and Smith’s attor- trial court its state was within discre- ney. post- Id. at S.Ct. 940. At a in refusing tion for an request Godo/s trial hearing, the court heard testimo- evidentiary hearing additional to investi- ny juror from the determined his gate Contrary misconduct claim. although application the letter of was an Godoy’s assertions, however, neither “indiscretion,” -it did not improperly influ- nor Remmer Smith v. Phillips, 213-14, juror’s ence the vote. Id. at (1982), 71 L.Ed.2d 78 A federal district granted establish that entitled S.Ct. 940. beyond already petition what he re- the defendant’s habeas and the affirmed, ceived. holding Second that the Circuit illustrate the attorneys previous precedents Our prosecuting of the failure application investi- juror’s governing rule” a court’s alert court of “flexible they of it violated due first learned gation when misconduct that 214, 102 S.Ct. 940. The process. Id. Id. at 1044. For and Smith established. reversed. Supreme Court instance, in Tracey, petitioner a claimed the court established state violated analysis adequacy the of on Focusing its to sev- question law when it failed federal trial, after the the hearing the conducted juror jurors had told another eral who in- judge’s that the trial concluded Court they and after voir dire that “felt before juror allegations of mis- vestigation of the guilty” questioned was and [the defendant] sufficiently protected the defen- conduct 215-18, rights. Id. at “any question there in refer- whether was process dant’s due (“This to the verdict.” Id. long has held Court We held ence remedy allegations juror for of ques- that to that the trial court’s decision not hearing in which the defen- a to Rem- partiality jurors is contrary tion these was not prove to actual opportunity dant has the Smith, mer or complied court bias.”). however, the holding, In Court so command to with Smith’s “determine the a requiring a rule declined to establish [prejudicial] when effect of occurrences there alle- hearing whenever are separate by examining they happen” the statements- Rather, gations juror of misconduct. concluding timing that the “nature and and a process “Due means explained, of the bias” was insufficient to necessitate capable and to decide the case willing Id. inquiry. (quoting further 1044^45 it, trial solely on the evidence before and a (al- Smith, 217, 102 455 U.S. at prejudicial judge prevent ever watchful added)). teration and determine occurrences effect Sims, Likewise, we held that neither they happen.” when Id. such occurrences Remmer nor Smith demand that a added). (emphasis 102 S.Ct. 940 sponte sua allega- into hearing conduct recently The Court has reiterated this juror at 1155. tions of misconduct. rule, stating “suggestion preju- that holding, again In that so we concluded prompt to “determine dice” should courts “Smith Remmer and do not stand directly juror has taint- any whether been hearing required that a proposition is — Bouldin, Dietz U.S.-, v. ed.” Id. We potential case of every bias.” (2016). L.Ed.2d noted that the “flexible rule” evinced also Notably any absent from these cases is Remmer and Smith reflects our own requirement evidentiary strict hold that court should precedent circuit “ hearing of the court’s investi- in the course allegations, the content of the ‘consider recog- have gation prejudice. into As we the'alleged misconduct seriousness of nized, “Remmer and Smith do not stand' bias, credibility of the source’ any time evidence proposition for the that hearing determining whether a when due light, process bias comes to Tracey, Id. required.” (quoting at 1155 question trial requires the court to F.3d at Tracey jurors alleged to have bias.” Palmateer, 2003). Instead, we concluded on sev- light In of the Court’s Smith

eral occasions them, precedents past reading and our flexibility with leave courts deter- concluding we have little trouble evidentiary hearing ap- mine when an Appeal “beyond any not err Court of did propriate. Instead, disagreement” today.” possibility for fairminded he [E.M.] ordered con- hearing no re- ruling that further tinuance and instructed Godoy’s counsel to quired. provide potential names wit- prosecutor nesses to the “well in advance” opinion, its the California Court next hearing. possessed noted the trial over evi- “discretion” whether hold an provided counsel never a decla- dentiary hearing, such a and that from Roughly ration E.M. one week before held “should be where defense hearing, however, the rescheduled he sent has come forward evidence demon- an affidavit from prosecutor N.L. strating strong possibility that prejudi- court. Yet the day of the hear- cial misconduct has occurred.” The Court ing, Godoy’s counsel admitted he then concluded that trial the “not prepared” that he had not properly court that such a reasoned show- brought N.L. to hearing the because he Godoy’s case, ing was absent because grant assumed the court would motion his N.L. per- was an alternate with no for an additional continuance which he knowledge sonal of jury deliberations and day filed the During before. the course of alleged because the communications be- conversation, the the court repeatedly judge tween absent and Juror “re- Godoy “any asked whether he had other procedural lated to matters rather than juror’s affidavit” in addition to N.L.’s that appellant’s guilt.” hardly We think a such he to Godoy’s wished submit. counsel ad- unreasonable, conclusion was not be- least not, he did complained mitted but that the cause the trial fell clearly court’s actions judge “refused to allow the sworn testimo- within “flexible” Su- parameters ny” E.M. at the last In hearing. re- preme Tracey, Court’s cases demarcate. sponse, judge explained that under F.3d at law, California obligated he was to exam- Moreover, Godoy have the opportu- did any juror ine an affidavit of to determine nity testimony to present favor of his juror’s whether the statements would be juror misconduct claim. Prior to the first admissible before could he consider their trial, Godoy’s for a on motion new Having merits. examined declara- N.L.’s Godoy’slawyer stated that he would “pres- tion, judge Godoy’s the trial then denied testimony ent live witness or declarations motion for new trial. jury panel from at the [the] time of There little doubt that the trial court hearing” Juror Yet about 10’s misconduct. everything required by here did Smith and Godoy’s provide counsel failed to pros- [prej- to “determine effect of ecution any information the witnesses they happen.” occurrences when udicial] planned despite promise he to call do to (al- Smith, 455 so. he provide any Nor did or declaration added). Indeed, teration the trial court other information to stating the court what gave Godoy’s not counsel one but two testimony content his witness’s E.M., to present testimony chances from simply would be. He up showed N.L., any juror. other He or failed take hearing and insisted that E.M. be should Moreover, advantage of opportunity. either permitted testify. expressing After con- court “considered] the content prosecutor’s cern about the lack of discov- allegations, of the al- ery seriousness and the uncertain admissibility bias, testimony leged misconduct or and the credibili- E.M.’s since he had “no idea to,” insofar may ty what of the source” reviewed testify the trial he [she] decided no testimony not “hear from N.L.’s declaration and concluded fur- ready necessary. United States uncertain terms “hear it was inquiry

ther testimony from” E.M. for the failure of Angulo, 4 F.3d but facts, con- hardly we can rules light Godoy’s comply such counsel to with basic evidence, unreason- clude the trial court acted done so surely would have way that contravened ably, much less E.M. N.L. Godoy’s brought had counsel or law.” 28 established Federal “clearly simply do not hearing.3 second We 2254(d)(1). Remmer, Smith, § U.S.C. any or other believe that ad hearings decision mandates additional argues that the trial The dissent fails to because defense counsel infinitum federal transgressed, established present. offer he is As evidence invited law when concluded such, to re- we decline invitation evidentiary hearing separate entitled to claim de novo or his to overturn the view “strong he failed to demonstrate on this petition denial of his habeas oc- prejudicial possibility” that misconduct ground. But see at 1100. we fail to curred. Dissent of this standard application

how the court’s difference, any since IV other makes undisputably here trial court “deter- lastly argues he is en ... or not communi- [the whether mine[d] despite titled to habeas relief the demand prejudicial, in a cation] 2254(d) ing requirements §of because the parties permitted partici- to all interested unreasonably request trial court denied his 230, 74 S.Ct. pate.” U.S. Godoy’s for a third continuance. Because Moreover, mystified by the we are 450. argument misunderstands insistence that the trial court’s dissent’s precedent high and fails clear the bar “reasonably calculat- was not investigation AEDPA, not this he is entitled relief on about the ed to resolve doubts raised ground. juror’s (quot- Dissent at 1103 impartiality.” Calderon, ing Dyer v. Trial dis 974-75 courts “broad 1998) (en banc)). judge in determining The trial cretion” whether continu hearings Godoy’s granted, “only ances and held one but two should be not juror misconduct, arbitrary upon allegations unreasoning reviewed ‘insistence counsel, justifiable of a by Godoy’s expeditiousness submitted the face affidavit ” delay’ constitutionally im parties’ request from the counsel before heard Slappy, Morris v. determining prejudice. permissible. that there was no 461 U.S. 11-12, Likewise, 75 L.Ed.2d 610 the dissent’s assertion (1983) Ungar Sarafite, v. willingness per- (quoting trial no 376 U.S. court “showed 575, 589, Dis- testimony” mit ... live is incredible. 84 S.Ct. L.Ed.2d (1964)). Further, 1104. in no even if a trial court abus- sent at court said may concerning juror attempts the trial evidence” misconduct The dissent minimize admissibility § court's concern over be considered. Cal. Evid. Code 1150. Fur testimony by pointing provision to a N.L.’s ther, precedent cited the trial California allowing from the California Evidence Code man states that section 1150 ... for the introduction of “statements dates a court must "first determine likely influ- such a character as is to have supporting whether the affidavits the motion improperly.” verdict Dissent at enced the are con [for trial] new admissible” before (quoting § 1104 n.10 Cal. Evid. Code sidering juror's testimony. Peo substantive provision highlights Yet than un- this rather Perez, 893, 906, ple Cal.App.4th v. 6 Cal. position, spe- as it dermines trial court's (1992). Rptr.2d 141 cifically only admissible states "otherwise continuance, in denying es its discretion precedent Circuit into a specific review petitioner a habeas must prej show actual looks at certain Instead, factors. udice to obtain relief. See Brecht Abra the correct question is whether the Cali- hamson, fornia Court of Appeal reasonably conclud- (1993). Here, 123 L.Ed.2d 353 the Califor ed that the trial court did not abuse its Appeal nia Court of reasonably concluded broad discretion when it Godoy’s denied that, in light circumstances, of the relevant continuance. In light of the circumstances the trial court did not abuse its discretion presented reasons to the trial when denied motion for a con case, this we find no such error in the tinuance. Appeal’s Court of decision. In his continuance, motion for a

The Supreme Court has defense explicitly argument counsel’s sole stated that there are “no was that mechanical he was tests” busy with a separate in deciding whether a denial of a murder trial continu and had no time to process. prepare ance violates due Ungar, response pros- to the Instead, ecution’s supplemental 84 S.Ct. 841. opposition “[t]he answer to his must be found in the motion for a pres circumstances new trial. The trial judge case, every ent in particularly summarily in the rea denied the motion upon based presented sons trial judge the fact that there was legal “no cause request Thereafter, time the denied.” Id. stated.” Court of cites several Ninth Circuit cases to con observed that Godoy’s counsel had failed tend that explain we must balance certain specific sufficiently “why he had been factors in order to determine unable to whether a review the supplemental first denial of opposition continuance was fair and reason when he actually was not able. But Ninth Circuit cases are court.” It further noted that Godoy’s coun- “clearly law, established Federal as deter sel was in trial for ten hours and five by Supreme mined Court of the minutes during United days six between the States,” and thus their holdings do not date when he received the supplemental any binding establish test for AEDPA’s opposition and the date when he filed his purposes. 2254(d)(1); § 28 U.S.C. see Glebe motion thirty-day for a continuance. Like- —Frost, U.S.-, v. 429, 431, wise, S.Ct. the Court of Appeal remarked that (2014). 190 L.Ed.2d 317 Godoy’s attorney did not indicate that ei- ther his case at trial or the issues raised Moreover, precedent circuit can by prosecutor’s supplemental opposi- not be used to “refine or sharpen general tion especially demanding complex. or principle Supreme of jurisprudence Godoy argues that it is common knowl- specific legal into a rule that this Court edge that trial attorneys spend many has not must announced.” Rodgers, Marshall v. — -, hours out of preparing for U.S. in-court 133 S.Ct. hearings (2013); and trials. He Lopez, L.Ed.2d 540 also claims that his at 2 S.Ct. (“We attorney could not emphasized, divulge particular his time again, and reasons for prohibits being prepare unable to [AEDPA] the federal for the courts appeals from motion relying disclosing on their without information prec- pro- own edent by to conclude that a tected work particular product attorney-client or consti- ”). However, tutional principle ‘clearly privilege. Godoy’s established.’ counsel never The Supreme Court’s command in contended that Ungar detailing the reasons for that a denial of a inability continuance must his to prepare hearing be for the assessed in light of present “circumstances would him require divulge confidential in every case” cannot be by refined Ninth Holland, information. See Hernandez v. 2014) investigate further— 843, (noting trial court need not violate due requested a continu- verdict would although counsel is- process. disagree. “serious I to “conflicts”

ance due find sues,” no basis to there was context, recently, analogous in an Just continuance was unreasonable denial of “the Court reaffirmed that not state the nature of “counsel did since impartial jury is vital to guarantee of an issues” and did not the conflicts serious v. justice.” fair Dietz administration “give request parte an ex some — Bouldin, 1885, -, (inter- conclusory his claims” substance (2016). due 195 L.Ed.2d Because omitted)). Additionally, the nal quotations “any ground of process does not tolerate already granted had two contin- judge trial justice suspicion administration coun- to the denial defense prior uances by external in has been interfered with” motion, one June sel’s States, fluence, v. Mattox United ne- Godoy’s lawyer another request of (1892), 140, 149, 13 36 L.Ed. prom- failure disclose cessitated his solely jury must “decide the case information prosecutor. to the Those ised it,” judge and the trial evidence before already delayed the sen- continuances had [prejudicial] must the effect of “determine over months.4 tencing date two they happen,” occurrences when Smith short, several had Phillips, 455 U.S. (1982). for a con- denying for the motion reasons these 71 L.Ed.2d 78 So obvious are neither that were unreasonable tinuance Dietz no citation to principles that needed arbitrary. In of the discre- light that, nor broad “sug is even a conclude when there courts, “should, to trial a fairminded tion accorded gestion of a court prejudice,” jurist easily course, could conclude that state any juror determine whether has Appeal’s affirmance of the trial Court of directly tainted.” S.Ct. at 1894 been added). a con- denial motion for judge’s this (emphasis require Dietz took not unreasonable. allegation tinuance was no granted despite ment possibility extrinsic influence—

V just-dismissed jury that a had been tainted recalled. id. has to demon- before was See Because failed ha- that his claims warrant federal strate controlling These are principles bedrock relief, of district judgment the the beas that, Godoy alleged during Enrique here. court is trial, jurors texting a one of the Godoy “Judge North” the case. up AFFIRMED. about ju- a declaration from alternate presented FISHER, dissenting: Judge, Circuit N.L., 10 “kept ror stated con- which Juror “judge the tinuous communication” with sitting juror alleged to have When relayed judge’s responses friend” and the continuously judge friend about texted N.L., throughout the jury.1 According the informa- to to relayed judge’s the trial and trial: jury, majority tion the concludes the the to indirectly as it these that it considered them insofar observed 4. trial referenced must that to obtain a continuance counsel of his counsel's motion continuances denial continuance, "prepared he for with demonstrate that commenting "It's been sev- for conviction, diligence.” due months since this and I’m eral going today.” Although the Court forward Godoy’s present also live explicitly did not mention these con- counsel offered decision, juror testimony E.M. on this its we it evident from alternate think tinuances decision, Appeal’s however, number ten would communi- [J]uror “contrary “judge cate with her Mend” about the to” and “an application unreasonable of’ jury [by message]. case text When this established law. 28 U.S.C. going was not sure what was on or 2254(d)(1). § Although correctly acknowl- next, procedurally happen what would edging N.L.’s declaration established the juror ten number would communicate prejudice, presumption of state court Mend and her disclose unreasonably concluded the same evidence jury what he said.2 rebutted it. The state also court denied Godoy messaging plainly evidentiary 10’s text was an Juror under the rule, potential prejudice” wrong legal for to the requmng “avenue[] him to demon- verdict, as Dietz warns. 136 S.Ct. 1895; a “strong possibility” prejudice. strate I id. see (“Prejudice through can come a would therefore remand district whisper byte.”). texting or a Her “about evidentiary hearing for an prop- reasonably pertained the case” could have er application of Remmer1 s presumption important procedural matters —such as prejudice. excluded, why certain evidence was how upholding state court’s denial of guilt— was to decide the issue relief, majority permits presumption may juror’s have affected a views in name alone and all but eliminates Especially about the case. such Smith’s hearing requirement. majori- -The relayed continuous communications were ty thereby distorts the purpose the An- jury, they prej- back to the were “possibly titerrorism and Penalty Effective Death to ... tendency “ha[d] udicial” and influ- (AEDPA), needlessly Act of 1996 creates Mattox, ence” verdict. 146 U.S. precedents conflicts with our and those of 13 S.Ct. 50. circuits, other and substantially weakens consequences clearly Two must follow guarantee the due process of a fair trial. I First, authority. under respectfully dissent. “presumptively prej- communications were udicial,” meaning “the burden rest[ed] I heavily upon they [state] establish” were, argues the California Court of fact, Remmer Unit- “harmless.” (Remmer), concluded the Rem- Appeal unreasonably States ed mer (1954). Second, “was rebutted” because L.Ed. N.L.’s did declaration a “sub- evidentiary was entitled to an hear- establish I ing investigate agree. stantial likelihood bias.” preju- issue of actual Smith, dice. See Because prosecution 455 U.S. at had failed to in- (“This evidence, any contrary troduce long Court has held that the state remedy solely allegations partiality court relied evidence to hearing....”). a The California Court of determine the issue of prejudice. my claim, prosecu- granted Although but the the 2. N.L.’s Juror declaration stated 10 request tion's a deliberations, well, for continuance and did not texting during was as testimony. peti-

hear the In his state habeas there is no indication how would have N.L. tion, Godoy subsequently submitted declara- personal knowledge My had of fact. con- that majority tion from I E.M. assume the is cor- clusion therefore rests on the fact that part rect that this second declaration is not of texting Juror 10 was about the case continu- purposes analysis. the record for of our See ously during trial. Op. solely 1088-89. Even based on N.L.’s declaration, though, Godoy clearly was de- process. nied due

1096 presumption “raisefd] of duct a rebuttable view, application an unreasonable it was unreasonably the concluded prejudice,” to conclude same evidence it Remmer the Remmer prejudice both established and rebutted ... was presumption “[t]he majority little at- presumption. The makes As based on the same evidence.3 rebutted” defend the state court’s actual tempt to sense, a matter of common N.L.’s declara- goes way out of reasoning, but instead its simultaneously tion could not establish presumption question to whether the the absence of possible prejudice both place. first That applied should doubt, If were Rem- prejudice. there is irrelevant our discussion—which point mer made this clear. Where itself analysis contrary AEDPA dicta—is some of the lower courts had inferred from binding precedent. alleged offer defendant’s evidence that the jest,” made in “had been bribe A States, 277, v. 205 Remmer United clearly is relevant established law The (9th 1953), 291 Cir. the Remmer Court right The to trial before straightforward. reversed, that, stressing pre- jury “absolutely impartial forbid[s]” attached to the facts sumption communications, “[pjrivate possibly preju defendant, by the “the burden alleged dicial, jurors persons.” third between government heavily” rest[ed] 150, Mattox, 13 146 S.Ct. U.S. was, “harmless,” fact, the contact show “[A]ny” such extrinsic communications 229, The S.Ct. 450. pending the matter before the “about presumption thus cannot be rebutted sim- jury” “presumptively preju are therefore contrary ply by drawing inferences from heavily dicial,” upon and “the burden rests very establishing pre- evidence to establish ... such con [state] could, showing every If it sumption. the juror tact was harmless.” Rem communication “possibly prejudicial” 229, mer, (citing U.S. at by the mere inference would be rebutted Mattox, 148-50, 146 U.S. prejudi- the communication not implies, pre As “harmless” the word cial. is not rebutted unless state sumption because, disagrees in its majority prejudice,” “the absence United shows Olano, view, clearly require not Remmer does v. States (1993), contrary 123 L.Ed.2d 508 mean evidence to rebut introduction of ing possibility “there no reasonable But presumption. Op. See 1087-88. the communication will influence the ver spell need out this Remmer did not dict,” v. Cal. Men’s Caliendo Warden very it is intrinsic to the requirement: 2004) (9th Colony, 365 F.3d “presumption.” definition of a See Black’s rule (observing that this estab 2009) (defin- Dictionary 1304 ed. Law lished). “calling for certain ing “presumption” adversely ... affected result unless Although Appeal the California Court it with other evidence” correctly acknowledged party Juror 10’s miscon- overcomes (2011); People majority Rptr.3d 247 P.3d People v. Lok- preme the with federal law.” repeatedly Court has derived rebut- “inconsistent 691, 630, See, er, Cal.Rptr.3d 188 presumption from Remmer itself. Cal.4th table 580, 547, (2008). Price, e.g., In re 51 Cal.4th 121 Cal. P.3d added)); (emphasis (defining presumption reasonable, id. at 1306 of the is the state presumption” as infer- “[a]n “rebuttable court’s decision was unreasonable because “may ence” that be overcome the intro- it against Godoy. resolved tie The state contrary (emphasis duction evidence” concluded, “[n]othing court dec- [N.L.’s] added)). is black-letter law that a pre- It suggests laration the ‘judge friend’ where, sumption be cannot rebutted communicated prejudicial information to here, party fails to opposing the introduce [Godoy]” though it unclear was —even contrary Dep’t Cmty. evidence. See Tex. texting whether Juror 10’s “about Burdine, 248, 254, 450 U.S. Affairs case” included procedural matters (1981) (“[I]f L.Ed.2d may juror’s have affected a about views party] is silent in the [one face of reasonably the case. Juror 10 could have presumption, judg- the court must enter texting about, example, why been for cer- party] ment for other because no [the issue tain evidence was excluded or how case.”); of fact remains Lincoln v. was to determine guilt. Because the state French, 105 U.S. 26 L.Ed. 1189 court could not way— determine —either (1881) (“Like other was presumptions, it messages actually whether text con- sufficient to control the decision of the non-prejudicial matters, cerned it could not rebutting testimony court if no pro- this ambiguity against Godoy. resolve The duced.”). Tellingly, majority points application state court’s of Remmer was no other “presumption” that can be rebut- therefore unreasonable. ted in this manner. here, Given the record no fairminded B jurist could conclude the state court actual majority why explains length The is ly presumed prejudice. only question The “skeptical” that Mattox the state court considered was whether clearly “enti- established prejudice. evidence established Godo/s tled ... to a presumption prejudice” The thus court faulted N.L.’s declaration Op. all. 1086-87. court Because state indicating messages the text “related applied presumption prejudice, how- procedural failing “sug matters” and ever, that extended discussion is irrelevant gest[ ‘judge that the friend’ communicat ] analysis. AEDPA ed our See Frantz v. prejudicial [Godoy].” information The 2008) majority Hazey, 533 F.3d assumes the state court pre (en banc) (“[I]f magi sumed it used some we were defer to cal “presumption” hypothetical words and “rebutted.” alternative rationale when the Op. process 1088.1 do not think be due can state reasoning court’s actual evidences easily. evaded 2254(d)(1) so Mullane v. error, Cent. § we would distort Cf. Co., Hanover & AEDPA.”). Bank Trust purpose And because the (1950) 94 L.Ed. majority ultimately presump- assumes the (“[Pjrocess which gesture is a mere is applied, tion its of the issue is discussion due process.”). The applied state terms, dicta. But even on own the ma- its alone; name is not jority wrong: presumption clearly application reasonable of Remmer. applied because Juror 10’s communications Mattox, “possibly prejudicial.” were majority The suggests also the Remmer majority’s U.S. at presumption merely a tie-breaker that to walk this estab- applies attempt back when court cannot determine needlessly creates conflicts with alleged prejudice. Op. nature lished law assuming precedents. 1088-89. Even this narrow view our by any “unauthorized invasions.” tainted Id. already clearly it is estab- have held We that, is presumed” “[prejudice

lished that These authorities establish where, here, pos- communication “[a] presumptively prejudicial, an extrin- to be “it raises a risk of sibly prejudicial” juror only “cross[ ] sic communication need Caliendo, influencing the verdict.” potential create the for a low threshold to good at 697. For reason. Even the F.3d Caliendo, 365 at 697. Our prejudice.” Mattox, it was law “text-book[ ]” time of repeatedly recognized have this own cases having communications that “unauthorized Tarango, at “bright-line rule.” 815 F.3d tendency can be a to adverse influence” (“Mattox bright-line established a 150,13 at “fatal to 146 U.S. verdicts.” juror contact a rule: external with “the explained, jury should 50. As Mattox the contact subject presumption to a pass case free from external upon the verdict....”); Tong prejudiced jury’s the exercise of tending causes disturb (9th Felker, 1067, 1077 Xiong v. 681 F.3d judgment.” [sic] deliberate and unbiassed 2012) (holding Cir. that Mattox Rem- estab- at S.Ct. 50. Mattox thus Id. widely accepted mer “establish[ ] private that “possibly prejudicial” lished jury rule a mis- bright-line finding jurors “between and third communications a gives presumption conduct rise to witnesses, persons, or officer in Caliendo, at 697 365 F.3d prejudice”); ... charge invalidate the verdict” unless (“The applies an unau- Mattox rule when they are rebutted. Id. juror communication with a cross- thorized high a bar: This was not Mattox made potential a es low threshold create ... “any suspicion” of extrinsic clear prejudice.”). for be “tolerated.” 146 U.S. at influence cannot above, explained As Juror 10’s continu- added). 149,13 (emphasis S.Ct.'50 “possibly texting ous about the case was Remmer, This rule obvious too. was “tendency ad- prejudicial” had There, the no au- Supreme Court needed Mattox, 146 U.S. at verse influence.” conclude, thority “any private communi- reasons,” then, obvious “[F]or 13 S.Ct. 50. ... during cation trial about presumptively the communications were is, jury matter pending before prejudicial. reasons, presumptively obvious deemed S.Ct. 450. prejudicial.” 347 U.S. at 74 S.Ct. 450 added). Mattox, (emphasis Relying on presumption Remmer observed that the why majority asserts three reasons conclusive,” gov- prejudice “is not but might not presumption prejudice “heav[y]” ernment bears burden to clearly applied here. our Given bind- establish “such contact with precedent contrary, per- to the none is ing (citing harmless to the defendant.” Id. suasive. Mattox, 148-50, First, relying on United States Dut applied presumption The Court then 1999), kel, 895-96 vague allegation jury tampering even announced majority contends Remmer though the record not indicate “what did only “special applies rule” that inci- actually transpired, or whether the Op. I jury tampering context. 1086-87. dis may dents that have occurred were harm- Although applies itself agree. Again, ful Id. this not a or harmless.” jury tampering, high “[t]he bar: Remmer reasoned that recog- limited. Dutkel proceedings” be is not so integrity cannot 1099 Third, majority of types that other misconduct tries limit Calien- nized cases, interpretation by post-iüemTOer binding see do’s were controlled Mattox n.l, applying only at have since where a 192 F.3d 895 we communicates subsequent Supreme that with a “witness” or party.” Op. concluded Court “interested fact, we authority signal “did not a retreat from 1086-87. held in that Caliendo Caliendo, spoke well-settled rule.” Mattox categorical “[t]he Mattox’ terms, held, mandating that repeatedly ‘possibly prejudi- F.3d at n.3. We accordingly, cial’ that Mattox —not Remmer— out-of-court communications between presumption jurors parties” presump- and outside are clearly establishes prejudice tively prejudicial. with to extrinsic commu- at respect (empha- added) See, Mattox, Xiong, e.g., Tong (quoting nications. sis at U.S. 50). 1077-78; Caliendo, holding at 365 F.3d at 697. 13 S.Ct. Our was sound: Moreover, “special” clearly what is about Mattox established the same that it tampering presumptively “possibly prejudicial” is not sentence com- prejudicial, allegation but that credible munications with with “witnesses” and (ie., automatically gives persons” rise to the tampering parties) “third outside are Dutkel, presumption, presumptively prejudicial. see 192 F.3d at 146 U.S. at for extrinsic “the 50. whereas communications 13 S.Ct. that the defendant must show eommunica- Because the could have influenced the verdict

tion[s] clearly applied applied by was —and of proof before the burden shifts to the majority’s state court—the extensive dicta Caliendo, prosecution,” 365 F.3d at 696. AEDPA, are inconsistent sow need- here, That immaterial distinction is howev- confusion in the less law and create multi- er, this Godoy satisfied burden. ple precedent. conflicts with our Second, majority distinguish tries to II involving and Remmer as commu Mattox concerning pending point, having nications “the matter At this concluded the Cali- jury.” Op. (quoting Appeal before the fornia Court unreasonably ap- 1086-87 Remmer, plied U.S. normally we would deter- rejected already argument. We have this mine de novo was whether there actual Caliendo, See, Caliendo, See F.3d at (“Nothing e.g., prejudice. 365 F.3d at suggests here, that for Mattox the rebuttable though, I would do so be- not attach, presumption to substance of in the state court’s cause deficiencies factually the extrinsic contact must relate an analysis arose from its failure to order trial.”). Regardless, Juror 10’s con evidentiary hearing. I would therefore texting “about case” plainly tinuous request an grant Godoy’s alternative pertained jury. to the matter before the out, evidentiary hearing. As it turns messages per Because text could have independently warranted be- disposition matters, to important procedural tained cause state court also denied why such as certain evidence excluded evidentiary hearing legal wrong under the or the jury how was to decide the issue of rule, Godoy plainly was entitled guilt, it is immaterial that N.L.’s declara hearing. some sort say tion explicitly did also A guilt texts concerned innocence. Godo/s Court of conclud- “possibly prejudicial” The texts were The California Mattox, presumptively prejudicial. hence ed was not entitled eviden- 150, 13 had tiary hearing S.Ct. 50. because he “failed communications, any, is if prej- effect ‘strong possibility demonstrate II, 350 That the record. Remmer unclear from occurred.’” [had] udicial misconduct 425; 379-80, see Tanner estab- U.S. contrary decision States, 107, 120, 107 S.Ct. 483 U.S. authority requiring United Court Supreme lished (1987) (“The 2739, 90 al- 97 L.Ed.2d Court’s the evidentiary hearing whenever an hearing holdings evidentiary an requir[e] prejudicial. is leged potentially misconduct relationships substantially influence or view where extrinsic contrary majority’s The ”). our have tainted the deliberations.... We process and misconstrues weakens due concluded, well, clear- hearing a is precedents. “a ly required potentially prejudicial where 1 at alleged.” Tarango, contact 815 F.3d is flexibility A to deter- 1224. trial court has long “has held Court Supreme hearing long as mine the of the so juror of partiali remedy allegations the for form calculat- “investigation reasonably [is] 455 hearing.” Phillips, v. ty is Smith raised about 940, ed to doubts 215, 78 resolve 209, 102 71 L.Ed.2d U.S. S.Ct. Calderon, Dyer v. 151 (1982). juror’s impartiality.” “possibly observed Mattox 1998) banc). (9th (en 970, “in F.3d 974-75 Cir. communications extrinsic prejudicial” verdict, “hearing” required. their But kind of at least unless some validate 2739; Tanner, 120, 107 appear.” 146 U.S. 483 U.S. at S.Ct. is made to harmlessness 940; Smith, 215, 150,13 at 102 Accordingly, 50. such 455 U.S. S.Ct. at when S.Ct. 425; II, 380, occurs, at 76 a trial must Remmer U.S. S.Ct. a communication 350 450; Remmer, 229, at 74 see com 347 U.S. ... whether not [the “determine hearing at 1224. prejudicial, Tarango, also 815 F.3d munication] permitted to parties all interested The California Court of did 229-30, at 347 U.S. participate.” “potentially prejudicial” stan- apply this added). (emphasis This re 450 74 S.Ct. dard, but instead denied an eviden- process, quirement is commanded due had failed to tiary hearing because he on “a serious imposes which trial courts “strong possibility” prejudice. show actual duty question to determine ar- Although state contended at oral alleged. bias” when misconduct is gument “strong possibili- that California’s States, Dennis 339 U.S. v. United federal ty” was identical standard (1950); 171-72, 519, 94 L.Ed. 734 70 S.Ct. standard, cited the two the state cases Smith, 217, see 455 U.S. also namely, with a different dealt standard — (“Due ... process means a trial required proving prejudice. for actual prevent prejudicial occur ever watchful 771, Thomas, People Cal.4th v. See of such rences to determine effect 1109, 269 P.3d Cal.Rptr.3d they happen.”).4 when occurrences (2012); Loker, v. 44 Cal.4th People (2008). Cal.Rptr.3d has 188 P.3d explained, As the Court phrase “strong pos- hearing” that a “full is re- Neither case used the is “manifest” evi- sibility” when an or even considered quired where —as here —the dentiary hearing required. In a similar yet prejudicial prejudice attaches Mattox, tamper alleged jury required example, trial court to determine effect ing "paucity of information con- because of affidavits admit consider pre relating newspaper to the entire situation” and cerning what effect a article had sumption to the that attached jury’s the article on the deliberations because “tendency” "injurious improper Remmer v. United to the communications. had a to be 377, 379-80, II), (Remmer 150-51, States 13 S.Ct. 50. defendant.” (1956). hearing” L.Ed. 435 Similarly, required a "full context, hearing we have concluded Califor- does court conduct the re- con- Smith and Remmer. The Cali- “strong quired by likelihood” standard is nia’s requiring only a “rea- trary to federal law fornia of Appeal here focused one, sonable” inference of certain outcome. step unreasonably concluding See, Terhune, e.g., Wade although Godoy’s evidence was suffi- that — 2000) (“California courts trigger cient to the presumption preju- ‘strong likelihood’ following language dice—he was not evidentiary entitled precedent] applying are not [California contrast, step By two. the ma- prima for a legal the correct standard jority collapses the steps, reasoning two Batson.”). case under that the state court’s consideration of Go- facie doy’s proffer was step at one hearing I would reach the same conclusion here. Smith and Remmer. required by By elimi- Godoy an Because the state court denied two, nating any hearing step at notwith- evidentiary hearing wrong legal under the standing the state court’s initial presump- rule, contrary clearly its decision was tion of prejudice, majority ignores Supreme authority. established Court repeated Court’s instruction that 2 See, hearing Smith, e.g., required. a is 455 II, 215, 940; Remmer U.S. at 102 S.Ct. 350 reasoning clearly In was not 380, 425; at U.S. hearing, majority entitled to a all but U.S. at 74 S.Ct. 450. process guarantees eliminates the due Smith and Remmer establish once the pre- majority’s The approach truncated rests arises, majority’s here. In sumption assumption that, on the mistaken view, Smith Remmer and do not a require Remmer Smith provide “flexible hearing only at that a trial court de- Palmateer, rule,” Tracey v. all— 341 F.3d termine the effect of the extrinsic commu- (9th 2003), Cir. neither decision ever nication. See Op. long 1089-91. So as the See clearly requires hearing. Op. 1090- prof- trial court considers the defendant’s explained Tracey, however, 91. We juror partiality fer of evidence of and rules this “flexible rule” means that a trial, provid- on the motion a new it has every “hearing is not mandated time there Smith and Remmer process ed all the allegation is an misconduct or require. See id. 1091-93. United at 1044 (quoting bias.” 341 F.3d (9th Angulo, States v. F.3d Cir. approach This cannot be reconciled with 1993)). Tracey expressly derived this prop- Smith’s command very “remedy” Angulo, clarified, osition from where we allegations hearing.” for such itself “a is “In cases in which courts not re- have at U.S. S.Ct. 940. There are quired evidentiary hearing, an the facts steps process. two in the A court first clearly alleged shown that the mis- determines, based on the prof- defendant’s conduct or fer, simply bias could not have af- possibly whether the communication is (em- fected the verdict.” 4 F.3d at n.7 prejudicial presumption such that the at- added). Tracey not, phasis Every If case cited for inquiry taches. no further is neces- flexibility If this likewise held that no hear- sary. possibly the communication is prejudicial, evidentiary ing required an is when there is no reason- hearing is war- See, II, e.g., possibility prejudice ranted. at and hence no able then, two, short, Rem- Only step presumption 76 S.Ct. 425. In prejudice.5 Hanley, expose United preju- See States v. did not Defendants to unfair (9th 1999) (holding hearing Cir. no dice”); Langford, United v. States required alleged "vague where the statements that, true, out- if was not caused enough that even are flexible mer Smith hearing when influences and occurred before require side they do could not communication of the murder.” presentation extrinsic of evidence flexibility But their prejudicial. have been Id. at 1045. not con- Again, simply we did there. ends required where hearing whether a sider prejudi- potentially communication is Rowland, 414 F.3d 1148 Sims Neither presumptively prejudicial. cial and hence Tracey concluded a 2005), nor to conduct an reasonably refuse can authority— no majority thus cites once the evidentiary hearing when anywhere denying —for contrary, Sims On the prejudice arises. potentially prejudicial there evidence process that due recognized expressly fact, the ma- extrinsic communications. remaining from idle a trial “forbids Tarango holding jority’s conflicts indicating probable face of evidence four other circuits.6 That the Cali- least juror bias.” Id. at 1156. Because “Sims strong Appeal required fornia most, and unin- incidental alleged, ha[d] possibility therefore stretches had never influence” and tentional Remmer and Smith beyond breaking their evidentiary hearing, we had requested an point. Smith to consider whether no occasion evidentiary hearing require an B alleges potentially where the defendant weakening guarantees In addition to juror misconduct. Id. Similarly, prejudicial majority distorts the process, of due Tracey actually conduct- the trial court purpose of AEDPA. Where the state juror testified hearing in which ed a Godoy was not en- unreasonably concluded comments she had allegedly biased about any evidentiary hearing, ma- to titled See jurors. 341 other overheard from two because, in its jority upholds that decision that a “more We held F.3d at 1039-40. view, already provided the trial court had ju- the two hearing” question to elaborate clearly required hearings and was not alle- two because required “[t]he rors was not another. See That provide Op. to 1091-92. and noted bias gations specificity lacked 1986) hearing 1176, (9th evidentiary ... when the (holding hear- ment to an Cir. no allegation presents a allegations defendant credible required were ing was where a third finding a reason- or contact between support communications “insufficient concerning pend- party juror the matter prejudice]”); United States and a possibility [of able Trammell, 1983) Halbert, 388, (9th ing jury.”); Cir. v. F.2d before v. Stouffer (10th 2013) ("The required there (holding hearing was where Cir. no 738 F.3d possibility” duty court’s to conduct a Remmer hear- was "no reasonable scope juror genuine improper the exact ing because the court "knew when concerns of prejudicial informa- clearly the Su- allegedly nature” of arise is established contact tion). Andrews, Court.”); 488 F.3d preme Garcia (6th 2007) (observing Cir. the Su- evidentiary ("Once preme "an Court has established poten Tarango, F.3d at 1224 required hearing ... is ... where 'extrinsic alleged, the court tially prejudicial contact circumstances, relationships have tainted the im influence 'determine the should ” Tanner, (quoting 483 U.S. at deliberations’ upon juror, and whether or pact thereof Pearson, 2739)); Willard v. hearing 107 S.Ct. prejudicial, in a with all not it was " 1987) ("Due (7th process Cir. participate.’ F.2d parties permitted to interested hearing added) hold a requires ... that the trial court (quoting (emphasis compromising 450)); potentially Joyner, to determine if the Barnes v. See 2014) (‘’Remmer actually prejudiced the de- ... situation has 751 F.3d fendant.”). a defendant’s entitle- established ... Godoy’s AEDPA failure of counsel to comply is “inconsistent with with approach Op. basic rules of evidence.” ignores it 1092. Not so. Califor- deference” At the initial motions hearing, the trial reasoning,” Appeal’s nia “actual repeatedly said it had not yet Frantz, at 738—which assumed a decision whether “ma[d]e we will hear all.7 Regardless, there no over, testimony.”8 put The issue the court majority’s approach again erroneous then, testimony was not E.M.’s actual but own terms. its testimony. whether to hear that The trial majority’s assumption on the Even court refused decide that issue until the “hearing,” “hearing” Godoy received prosecution could interview the witness or comport process due plainly did receive the witness’ statement. As “reasonably calculated because was not explained, counsel he provided had not to resolve the doubts raised about that information sooner because he “didn’t juror’s impartiality.” Dyer, subsequently have it.” Yet even after he 974-75. The trial court had the affidavit of gave prosecution a witness statement N.L., juror alternate but did not seek to juror N.L., prose- from alternate and the N.L. or 10 about the text- question Juror opportunity cution had the to interview trial court ing. The also was aware E.M.,9 alternate the trial court still testify— alternate E.M. wanted present did not invite live testi- put and even her on the stand obtain mony, but told counsel—no fewer than her contact information —but did not seek four times—he argu- could “continue [his] question questioning her either. Such ment.” could have clarified the content and fre- majority nevertheless assumes the quency messages, of the text as the well “surely trial court would have” heard the they extent to which were communicated testimony brought “had counsel jury. to the But because the trial court E.M. or toN.L. the second hear- [motions] investigation, failed to conduct such it ing.” Op. Wrong again. 1092. When de- jurors’ could not resolve doubts about the fense counsel mentioned that the court had impartiality. plainly The trial court thus testify, permit refused to E.M. to the trial circumstances, failed to ascertain “the the asked, your “I said where is affida- impact juror” thereof upon the and wheth- ... an give vit? You didn’t me affidavit.” was, fact, texting prejudi- er Juror 10’s Despite objection that it counsel’s was Remmer, cial. 347 U.S. at 74 S.Ct. “rock an solid reversible error” not to hold 450. evidentiary hearing under the circum- majority disagrees primarily stances, be- repeatedly the trial court insisted ready cause it the trial court “was provide thinks he instead. Counsel ob- affidavits served, testimony requirement to ‘hear from’ E.M. but for the is no “[t]here majority's 7.The insistence that there were 8. The trial court stated in no uncertain terms a final decision on” whether “ha[d]n't made multiple "hearings” baffling. is The trial court prosecution testimony; hear asked the live testimony; heard live and it considered never if it needed more time “before we decide “evidentiary N.L.’s declaration not at an hear- going whether we’re to hear from this wit- ing,” part Godoy's but as initial offer of ness”; give prosecu- and stressed it would proof support his motion for a new trial. going tion "more time on ... whether we're Everyone including prosecutor, the trial — today.” testimony somebody to hear from Appeal— court and the California Court of Indeed, agreed “hearing.” there was no Godoy statement did not submit witness very issue before the court was whether a alternate E.M. until he filed his from required. petition. was state habeas us that way process. that misconduct tees of due Dietz reminds only are the affidavits attention,” brought to court’s can be simple: here should have been inquiry nothing to do “choos[ing] the court’s “suggestion prejudice,” raised error.” Yet was “reversible [E.M.]” about court should have so course” the state “of coun- persisted, permitting trial court any juror ha[d] whether “determine[d] “includ- argument to continue his sel Bouldin, directly been tainted.” Dietz v. [any] juror’s affidavit.” The trial court ing — -, permit alone willingness no showed —let (2016) added). In- (emphasis L.Ed.2d 161 testimony.10 compel invite or —live that, doing stead of the California Court bottom, majority fundamentally At evidentiary hearing un- Appeal denied to establish confuses a defendant’s burden rule, wrong legal der the then unreason- prejudice Godoy did— potential —which ably applied concluding Remmer in independent duty to with the trial court’s By was rebutted. impact actual on the investigate the errors, whitewashing majority’s those and, necessary, compel testimony. where opinion very protections erodes (“Where juror Dyer, 151 F.3d Cf. credibly alleged, predecessors' the Dietz—like its “vital misconduct or bias —found cannot wait for defense counsel judge justice.” to the fair administration of Id. at every him bit of information spoon feed respectfully 1893.1 dissent. bias; would make out a case of which rather, independent has an re- satisfy himself that the alle-

sponsibility unfounded.”). Because the gation of bias is meaningful attempt no trial court made circumstances, impact investigate “the Petitioner, REYES, Antonio juror, and whether or not upon thereof texting] prejudicial,” Go- 10’s [Juror process. of due doy clearly deprived Attorney LYNCH, Loretta E. 230, 74 450. I 347 U.S. at General, Respondent. judgment would therefore vacate No. 14-73510 evidentiary hearing to remand for the See, e.g., Tarango, entitled. which Appeals, States Court of United 815 F.3d at 1227. Ninth Circuit. Ill * February Submitted majority’s I concerns acknowledge Pasadena, California could have been counsel August Filed prepared. But the prompter and better lawyering provides in this case unfortunate guáran- denying

no basis for basic assertion, likely Contrary majority’s a character as is to have influenced the to the § improperly.” Evid. Code expressed concerns verdict Cal. never added). (West 2006) (emphasis admissibility testimony. Because the of N.L.'s about the Cf. Rather, permit gave no it would trial court indication Op. the trial 1092 n.3. matters, testimony investi as to even these its testimony might concerned that E.M. 's be in reasonably gation ascertained could not impeach can’t "[a] admissible impact of the the actual circumstances or permits their verdict.” But California law jury. on the See communications “any otherwise admissible evidence”—includ made, U.S. at 74 S.Ct. 450. ing testimony conduct, conditions, to statements —"as * occurring, panel unanimously concludes this case is ei or events room, argument. oral suitable for decision without ther within or without the of such 3. The notes California Court Danks, 269, Cal.Rptr.3d applied presumption Cali- Cal.4th "under (2004). held And has Op. law.” 1087. That was tantamount 82 P.3d fornia determining preju- applied un- California’s "standard a conclusion resulting from misconduct” is law as well. The California Su- dice der federal

Case Details

Case Name: Enrique Godoy v. Marion Spearman

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Aug 25, 2016

Citation: 834 F.3d 1078

Docket Number: 13-56024

Court Abbreviation: 9th Cir.