Jeffries v. Blodgett

Decision Date03 March 1993
Docket NumberNo. 91-36017,91-36017
Citation988 F.2d 923
PartiesPatrick James JEFFRIES, Petitioner-Appellant, v. James BLODGETT, Superintendent, Respondent-Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

Stephanie Ross, Bellingham, WA, and 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 AND DISSENT

In his petition for rehearing, Jeffries again asserts a due process violation in his state trial because of juror misconduct. We reviewed the district court's treatment of the question initially as an attempt by two jurors to impeach their verdicts by affidavits reciting misconduct in the jury room. The affidavits alleged that a juror had said, during deliberation on the guilt phase of the trial, "Jeffries is a convicted armed robber."

We agreed with the district court that if, indeed, the alleged misconduct had occurred, the misconduct probably had no influence on the verdict. We agreed with the district court's application of Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir.1986). Because we held that the district court had correctly applied the Bayramoglu standard, neither court reached the factual accuracy of the affidavits alleging juror After the filing of the petition for rehearing, we became aware of a possible conflict between our September 9, 1992 opinion in this case and Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988), which does not appear to have been briefed and argued in the district court. In Dickson, we granted habeas relief where two jurors were exposed to an out-of-court communication by a deputy sheriff to the effect that Dickson "had done something like this before." Because of the similarity of the communication heard by the two jurors in Dickson and the communication alleged to have been made by a fellow juror to two jurors in this case, we conclude that Dickson requires a remand for a factual determination as to the truth of the juror affidavits. If the district court finds that the alleged misconduct actually occurred, then Dickson would appear to require a remand to the state courts.

                misconduct.   The State disputed the facts alleged in the affidavits, but for the purpose of habeas review, both courts assumed the truth of the affidavits.   The State again challenges both the factual basis of the affidavits and their legal sufficiency to impeach the verdict
                

Accordingly, Judges Goodwin and Farris have voted to grant the petition for rehearing in part; Judge Fernandez would deny the petition for rehearing.

The opinion in Jeffries v. Blodgett, 974 F.2d 1179 (9th Cir.1992), is withdrawn and the attached opinion filed herewith is substituted therefor. The judgment of the district court is vacated and the case is remanded to the district court for further proceedings in light of Dickson v. Sullivan, supra. In all other respects, the petition for rehearing is denied.

FERNANDEZ, Circuit Judge, dissenting to grant of petition for rehearing:

The fact is that the district court did apply our five-part test as set forth in Bayramoglu v. Estelle, 806 F.2d 880, 887 (9th Cir.1986) and specifically determined that, among other things, there was no reasonable possibility that this particular introduction of extrinsic information, if it occurred, affected the verdict. The majority believes that Dickson v. Sullivan, 849 F.2d 403 (9th Cir.1988) eliminated the five-part test by elevating the mere receipt of prior offense information to what amounts to a per se rule that requires the overturning of a jury verdict. If so, that case has not only reversed circuit precedent, which it cannot do, but has also created a threat to the stability of jury verdicts that is almost incalculable. I do not believe that Dickson intended to do that, nor do I believe that it did.

If I am correct, the order we now issue imposes an unnecessary burden upon a conscientious district judge and just as unnecessarily impedes finality of a case involving a crime committed and a jury trial held in 1983.

If I am wrong about Dickson, we now leave that loose cannon free to continue its rampage across the decks of our legal ship and put off the inevitable day when our court must confront its danger, its damage, and its conflict with Bayramoglu.

Thus, I dissent from the order granting rehearing.

OPINION

GOODWIN, Circuit Judge:

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 district court's resolution of all of the issues except one--the issue of juror misconduct. We therefore vacate and remand.

While there was no eyewitness to the murders, the state produced evidence from which the jury could find that Jeffries killed Phillip Skiff by firing seven .22 calibre bullets into his body, and killed Inez Skiff by firing ten .22 calibre bullets into her body. He then buried his victims in shallow graves on their property, and told inquiring neighbors various false stories about their whereabouts. Either before or after the murders, Jeffries helped himself to the currency, gold, weapons and other personal property of the victims. He headed for Canada, leaving a trail of stolen property and witnesses who saw him selling or attempting to sell items stolen from the Skiffs. He was also seen flashing large quantities of Canadian money shortly after the Skiffs had been murdered. The late Mrs. Skiff had recently withdrawn $30,000 in Canadian currency from her bank in Canada. That money was never found or accounted for.

On November 5, 1983, the Clallam County Superior Court jury convicted Jeffries of two counts of aggravated murder. In a special verdict, the jury also found that two aggravating factors had been proven: (1) that the murders were committed to conceal the commission of a crime or to protect or conceal the identity of a person committing a crime, and (2) that the murders were committed as part of a common scheme or plan. Finding insufficient mitigating circumstances to warrant leniency, the jury sentenced Jeffries to death.

The Washington Supreme Court affirmed Jeffries' conviction and sentence on direct appeal. State v. Jeffries, 105 Wash.2d 398, 717 P.2d 722 (Jeffries I ), cert. denied, 479 U.S. 922, 107 S.Ct. 328, 93 L.Ed.2d 301 (1986). Jeffries filed three personal restraint petitions in state court, each of which the Washington Supreme Court denied. In re Jeffries, 722 P.2d 99 (Wash.1986) (Jeffries II ); In re Jeffries, 110 Wash.2d 326, 752 P.2d 1338, cert. denied, 488 U.S. 948, 109 S.Ct. 379, 102 L.Ed.2d 368 (1988) (Jeffries III ); In re Jeffries, 114 Wash.2d 485, 789 P.2d 731 (1990) (Jeffries IV ).

Jeffries then filed this habeas corpus petition in federal district court. The district court denied Jeffries' petition. Jeffries now appeals that denial.

We review de novo the district court's denial of habeas relief. Dickson v. Sullivan, 849 F.2d 403, 405 (9th Cir.1988). However, findings of fact by the state court are entitled to a presumption of correctness under 28 U.S.C. § 2254(d), Sumner v. Mata, 449 U.S. 539, 546-47, 101 S.Ct. 764, 768-69, 66 L.Ed.2d 722 (1981); Hamilton v. Vasquez, 882 F.2d 1469, 1470-71 (9th Cir.1989), and are reviewed for clear error. Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989).

In his habeas petition, Jeffries raises a number of constitutional issues covering every phase of his journey to this court. With regard to the district court, Jeffries argues that the court erred in failing to grant him an evidentiary hearing on newly discovered evidence and in refusing to allow him to present certain expert testimony. Concerning the Washington State Supreme Court, Jeffries argues that it was error for that court to make use of an improper report prepared by the trial judge. Concerning his state trial, Jeffries raises a number of issues covering: (1) the form of indictment; (2) fair trial; (3) evidentiary decisions of the trial judge; (4) aggravating circumstances; (5) mitigating circumstances; and (6) ineffective assistance of counsel.

I. Evidentiary Hearing

Jeffries argues that the district court erred in refusing to hold an evidentiary hearing concerning "newly discovered" evidence. The evidence concerns testimony of a travel agent who worked in the same town in which the victims had lived. According to her proposed testimony, three sinister-looking people driving a car with California plates entered her travel agency on the day of the murders and asked for directions to Barr Road or to the Barr Road Extension. The victims had lived on Barr Road.

The district court initially granted Jeffries' motion to hold an evidentiary hearing concerning this evidence. However, due to illness, the travel agent did not attend the scheduled hearing. Instead, her deposition was taken and the district court considered the information it contained in denying Jeffries' motion for a new trial.

A federal evidentiary hearing is mandatory if (1) petitioner's allegations, if proven, would establish the right to relief, and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir.1986). Jeffries can meet neither burden.

First, even if the travel agent's statement is true, Jeffries would not be entitled to relief. The mere existence of newly discovered...

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