ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
JON S. TIGAR, United States District JudgeBefore the Court is Petitioner Rickey Leon Scott's petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2554 to challenge the validity of his state criminal conviction. ECF No. 1. The Court will grant the petition.1
On April 12, 2013, a San Francisco jury convicted Scott of first-degree murder, finding that he had used a deadly weapon in the commission of the offense. ECF No. 36-2 at 132. On September 27, 2013, the trial court denied Scott's motion for a new trial and sentenced him to 86 years to life, with the possibility of parole, under California's Three Strikes law, Cal. Penal Code § 667(e)(2)(A). Id. at 579-81. On July 24, 2015, the California Court of Appeal affirmed Scott's conviction in an unpublished opinion. People v. Scott , No. A139921, 2015 WL 4505784 (Cal. Ct. App. July 24, 2015). The California Supreme Court denied review on November 10, 2015. ECF No. 36-10 at 535.
Scott's pro se habeas state habeas petition, filed during the pendency of his appeal, was summarily denied by the California Court of Appeal on October 16, 2014. Id. at 588. He filed two pro se habeas petitions before the California Supreme Court. The first of these was withdrawn at Scott's request on January 27, 2015. Id. at 590. The second was stricken for lack of jurisdiction on December 3, 2015. Id. at 659.
On March 22, 2016, Scott filed a pro se habeas petition in this Court pursuant to 28 U.S.C. § 2254. Scott v. Arnold , 16-cv-01391-JST, ECF No. 1. On November 14, 2016, pro bono counsel filed a second federal habeas petition on Scott's behalf, without knowledge of the first. ECF No. 1; ECF No. 23 at 2. On October 2, 2017, this Court construed the second petition as a motion for leave to amend, granted leave to amend, and deemed the second petition as an amendment to the first. ECF No. 30. Scott contends that he is entitled to a new trial under McDonough Power Equipment, Inc. v. Greenwood , 464 U.S. 548, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984), and because the jury foreperson was actually biased against him.
The following summary describing the factual basis for Scott's claims is taken from the California Court of Appeal's opinion:2
The factual basis for the juror misconduct claim was that Juror No. 8, the foreperson, failed to disclose during voir dire that he had suffered a misdemeanor conviction in 2009 and was unhappy with his representation by his deputy public defender, who worked for the same office as appellant's trial counsel. The declarations, testimony and exhibits presented in support and opposition of the motion for new trial on this ground established the following:
Juror No. 8 was convicted on July 22, 2009 of a misdemeanor count of making a criminal threat under Penal Code section 422 following a jury trial at which he was represented by deputy public defender Emily Dahm of the public defender's office in San Francisco. The charges arose from an incident in which Juror No. 8 had threatened a parking control officer while she was issuing him a citation. At the sentencing hearing held on September 25, 2009, Juror No. 8 was placed on probation and ordered to serve five days in county jail. Dahm filed a notice of appeal on Juror No. 8's behalf, and private attorney Marsanne Weese was appointed to represent him in the appellate division of the superior court. Weese filed a brief stating she could find no arguable issues on appeal and asking the appellate division to independently review the record under People v. Wende (1979) 25 Cal.3d 436[, 158 Cal.Rptr. 839, 600 P.2d 1071], and the appellate division affirmed the judgment in an opinion filed March 28, 2011.
On May 2, 2011, Dahm appeared on behalf of Juror No. 8 in superior court, at which time the remittitur was "spread upon the minutes," that is, read into the record. Juror No. 8 was not present for this proceeding. He had not communicated with Dahm since his sentencing hearing in 2009 and was unaware of his appeal, the identity of his appointed counsel on appeal, or of the hearing at which the remittitur was spread. Juror No. 8 believed he had been wrongfully convicted and was highly dissatisfied with the representation provided by Dahm.
Juror No. 8 was called for jury service and assigned to the panel in appellant's case. Appellant was represented at trial by Jeff Adachi, the elected Public Defender of the City and County of San Francisco. Before voir dire began on March 18, 2013, the jurors completed a written questionnaire. Question No. 24 asked, "Have you, a family member, or a close friend ever been investigated, arrested, charged with, or convicted of any crime?" Juror No. 8 responded no. Question No. 27 asked, "What are your opinions, if any, of prosecutors and/or criminal defense attorneys?" Juror No. 8 wrote, "NA." Question No. 38 asked, "The judge will instruct you as follows: Do not let bias, sympathy, prejudice or public opinion influence your decision. You must reach your verdict without any consideration of punishment. Is there any reason you would be unable to comply with this order?" Juror No. 8 answered no. Question No. 61 asked, "Is there any matter not covered in this questionnaire that you think the attorneys or court should know when considering you as a juror in this case?" and "Is there any other reason why you might not be able to be an impartial judge of the facts for both the prosecution and defense in this case?" Juror No. 8 responded no to both parts of the question. He also indicated he did not know the prosecutor or "[d]efense lawyer and Public Defender Jeff Adachi." During voir dire itself, Adachi asked the prospective jurors whether anyone had negative feelings about defense attorneys, and Juror No. 8 did not raise his hand or otherwise reply. On March 21, 2013, the jury and six alternate jurors were impaneled.
On April 12, 2013, the day of the verdict in appellant's case, Dahm was in the courthouse on another matter and ran into Juror No. 8 in the hallway. Although Juror No. 8 did not recognize her at first (she had been pregnant and had longer hair when she represented him in 2009), they had a brief and friendly conversation. Juror No. 8 told Dahm he was going to go do his civic duty, which led Dahm to believe he had been called for jury duty, but she saw him later in the day outside the courtroom where appellant's case was being tried and learned at that time he was on appellant's jury. Dahm knew Adachi was trying the case and told Juror No. 8 she could not talk to him and asked him to contact her when the case was over. She emailed Adachi to advise him that a former client was on his jury, and Adachi reviewed Juror No. 8's questionnaire during the following week, after the jury had returned its verdict. Had Adachi known of Juror No. 8's prior relationship with his office, he would have exercised a challenge and removed him from the jury panel.
Juror No. 8 testified at the hearing on the motion for new trial under a grant of immunity and while represented by counsel. He explained that he had not disclosed his 2009 conviction on the jury questionnaire because over three years had passed and he was trying to forget about it. He felt he could be fair and impartial when he was selected to be a juror in appellant's case, though he fretted extensively over the possibility that an unconscious bias based on his experience with Dahm might have affected his jury service. He was not trying to cheat appellant out of a fair trial and he did not recall holding any of his negative feelings about Dahm against appellant. He did not have any negative feelings about appellant or Adachi, and he did not realize Adachi was from the same office as Dahm. He also did not realize that the prosecutor in appellant's trial was from the same office as the prosecutor in his misdemeanor case. Juror No. 8's daughter, who had witnessed her father's arrest in 2009, testified that he did not discuss the incident leading to his conviction very often because it was upsetting to his wife, but that he had alluded to it several times during 2012. Though her father sometimes told small lies and exaggerated things, she believed he was an honest person and would not vote to convict somebody else simply because he believed he himself had been wrongfully arrested and convicted.
Scott , 2015 WL 4505784, at *5-6.
At the July 16, 2013 hearing, Juror No. 8 testified that his feelings that he was wrongfully convicted and that he received inadequate representation from the public defender's office "were still there" when he filled out the written jury questionnaire. ECF No. 36-9 at 321-22. He acknowledged that he should have answered truthfully about his conviction. Id. at 321.
The California Court of Appeal accurately summarized the California statutes relevant to Scott's claim that Juror No. 8 should have been stricken for cause:
Under California law, a juror may be challenged for cause for one of the following reasons: "(A) General disqualification—that the juror is disqualified from serving in the action on trial. [¶] (B) Implied bias—as, when the existence of the facts as ascertained, in judgment of law disqualifies the juror. [¶] (C) Actual bias—the existence of a state of mind on the part of the juror in reference to the case, or to any of the parties, which will prevent the juror from acting with entire impartiality, and without prejudice to the substantial rights of any party." ( Code Civ. Proc., §
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