                                                                            FILED
                            NOT FOR PUBLICATION                              AUG 19 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



EDWARD A. NOVELO,                                 No. 09-56496

              Petitioner - Appellee,              D.C. No. 2:06-cv-02544-CJC-
                                                  VBK
  v.

JAMES A. YATES, Warden Pleasant                   MEMORANDUM *
Valley State Prison,

              Respondent - Appellant.



                    Appeal from the United States District Court
                       for the Central District of California
                    Cormac J. Carney, District Judge, Presiding

                       Argued and Submitted August 4, 2011
                               Pasadena, California

Before: REINHARDT, WARDLAW, and BERZON, Circuit Judges.

       Warden James A. Yates appeals the district court’s order (1) granting habeas

relief on Edward A. Novelo’s juror misconduct claim based on the state court’s

unreasonable determination of the facts; and (2) requiring the state trial court to

provide Novelo with a constitutionally adequate hearing to address his allegation


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
of juror bias. The district court adopted the Magistrate Judge’s conclusion that due

process considerations mandated a constitutionally adequate hearing on the

claimed misconduct. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

      We review the district court’s decision to grant or deny a habeas petition de

novo. Bribiesca v. Galaza, 215 F.3d 1015, 1018 (9th Cir. 2000). Under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal habeas

corpus relief is available if the state court’s decision was “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(2). Because the California Supreme

Court denied Novelo’s petition for review in an unexplained order, we evaluate the

decision of the California Court of Appeal, which is the last reasoned state court

decision. Doody v. Ryan, --- F.3d ----, 2011 WL 1663551, at *12 (9th Cir. May 3,

2011) (en banc).

      When a petitioner challenges a state court’s factual findings based entirely

on evidence in the state record, habeas relief is warranted only if “any appellate

court to whom the defect is pointed out would be unreasonable in holding that the

state court’s fact-finding process was adequate.” Taylor v. Maddox, 366 F.3d 992,

1000 (9th Cir. 2004). Although this is a “daunting standard,” id., it can be met

when the state courts “plainly misapprehend or misstate the record in making their


                                           2
findings, and the misapprehension goes to a material factual issue that is central to

the petitioner’s claim,” id. at 1001, or where “the state court has before it, yet

apparently ignores, evidence that supports petitioner’s claim,” id. (citing Miller-El

v. Cockrell, 537 U.S. 322, 346 (2003)). In addition “[t]o fatally undermine the

state fact-finding process, and [to] render the resulting finding unreasonable, the

overlooked or ignored evidence must be highly probative and central to petitioner’s

claim.” Id.

      Novelo’s counsel brought a timely motion for a new trial based on alleged

juror bias. The accompanying declaration from Jay Gardner, a person who

attended closing arguments in the trial, stated that before closing arguments had

begun, on December 11, 2001, one of the jurors had told Gardner that “[t]his case

is easy. I saw it in the paper. It’s an open and shut case.” At the hearing on

Novelo’s motion for a new trial, the trial court accepted Gardner’s declaration as

an offer of proof and reviewed a set of representative newspaper articles provided

by Novelo’s counsel.1 However, the court did not take any further evidence on the

allegation of juror bias, concluding that Novelo had not presented strong enough

evidence of prejudicial misconduct. The court’s ruling was directly tied to its

finding that a December 12, 2001 newspaper article, the only article submitted to


      1
          These newspaper articles are not in the record of the state proceedings.

                                            3
the court that was published during Novelo’s trial, did not contain prejudicial

material. Novelo’s counsel’s statement that one of the articles “calls Mr. Novelo a

serial rapist” was uncontested, and the trial court found that the four newspaper

articles published before the trial were “certainly stronger and more prejudicial in

the headlines, and in the text and the quotations.” Nonetheless, the court based its

ruling solely on its evaluation of the December 12 article. The California Court of

Appeal subsequently affirmed the trial court’s conclusion that Novelo had not

presented sufficient evidence of prejudice because the December 12, 2001 article

relied upon by the trial court “was an accurate portrayal of the evidence offered at

trial.”

          The Sixth Amendment requires that jurors in a criminal case base their

verdict solely on the evidence presented at trial. See Turner v. Louisiana, 379 U.S.

466, 472-73 (1965).2 In Smith v. Phillips, 455 U.S. 209, 215 (1982), the Supreme

Court observed that “[t]his Court has long held that the remedy for allegations of

juror partiality is a hearing in which the defendant has the opportunity to prove

actual bias.” The Smith Court went on to hold that “[d]ue process means a jury

capable and willing to decide the case solely on the evidence before it, and a trial



          2
       This due process right applies equally to criminal defendants tried in state
court. Smith v. Phillips, 455 U.S. 209, 218 (1982).

                                            4
judge ever watchful to prevent prejudicial occurrences and to determine the effect

of such occurrences when they happen.” Id. at 217.

      Although we clarified in Dyer v. Calderon, 151 F.3d 970 (9th Cir. 1998),

that due process does not mandate a formal evidentiary hearing whenever juror

bias is alleged, we held that

      [a] court confronted with a colorable claim of juror bias must
      undertake an investigation of the relevant facts and circumstances. An
      informal in camera hearing may be adequate for this purpose; due
      process requires only that all parties be represented, and that the
      investigation be reasonably calculated to resolve the doubts raised
      about the juror’s impartiality.

Id. at 974-75 (citations omitted).

      The state trial court did not take any additional evidence, nor did it allow

testimony on Novelo’s juror misconduct claim, from either Gardner or the

allegedly biased juror, because it concluded that the December 12, 2001 newspaper

article was non-prejudicial. However, Gardner’s declaration states that his

conversation with the juror occurred on December 11, 2001,3 and the record

evidence establishes that the conversation could not have occurred on December



      3
         In fact, based on Gardner’s description of what occurred on that day in
court, the state trial transcript strongly suggests that the conversation may have
actually occurred on December 10, 2001–two days before publication of the article
that convinced the trial court that the newspaper coverage did not improperly
influence the juror.

                                          5
12.4 Thus, the juror’s comment that she saw the case in the paper could not

possibly have referred to the December 12 newspaper article, an article that had yet

to be published. Moreover, the trial court acknowledged that earlier newspaper

articles discussing the case, ones that the juror could have read, contained “stronger

and more prejudicial” statements. But the trial court refused to grant an

evidentiary hearing because of its conclusion that the juror’s statement referred to

the non-prejudicial December 12 article. The California Court of Appeal decision

affirmed the state trial court’s conclusion that the December 12 article did not

contain prejudicial material and that there was thus no showing that the juror’s

expression of her opinion was in and of itself prejudicial.

      Given that the state court’s finding of no prejudice was premised on its

erroneous assumption that the juror was referring to an article that had yet to be

published, we conclude that the California Court of Appeal’s decision was based

on an unreasonable determination of the facts in light of the state court record.



      4
        Closing arguments concluded on December 11 at 2:09 PM, at which point
the jury began its deliberations. Given that Gardner averred that his conversation
with the juror occurred during the lunch recess that directly followed the trial
court’s discussion of proposed jury instructions, the conversation could not
possibly have occurred on December 12. The trial court did not discuss proposed
jury instructions on the 12th. Moreover, Gardner’s declaration indicates that he
attended the trial to observe closing arguments, and closing arguments began on
the 10th, and were completed on the 11th.

                                          6
See, e.g. Wiggins v. Smith, 539 U.S. 510, 528 (2003) (holding that the state court’s

assumption that defense counsel learned about the defendant’s childhood sexual

abuse by reviewing records that did not discuss the abuse was an unreasonable

determination of the facts in light of the state court record). The trial court

misapprehended and misstated the record in concluding that the juror’s statement

related to a newspaper article that did not exist when the statement was made. See

Taylor, 366 F.3d at 1001.

      Novelo was denied the opportunity to investigate the juror’s actual bias

because he was unable to question the juror about her statement, and was thus

unable to show which prejudicial newspaper articles, if any, the juror had read.

See Smith, 455 U.S. at 217 n.7 (noting that determinations made during hearings on

alleged juror bias “will frequently turn upon testimony of the juror in question”).

As the district court found, the Gardner declaration suggested that Juror Number

12 read the newspaper articles the state trial court did find prejudicial; harbored a

bias against Novelo as a result; lied during jury voir dire; and admitted this

misconduct to Gardner. As the district court observed, there are reasons Gardner

may not be credible. But his credibility could only be assessed after a hearing in

which all of the facts were developed. Instead, the state courts’ decisions assumed




                                           7
that Gardner was telling the truth, and because the state judge refused to hold a

hearing, Gardner’s credibility has not been resolved.

      In short, we must disregard the trial court’s unreasonable factual

determination that the juror had read only the as yet unpublished December 12th

article. We therefore agree with the district court that Novelo presented sufficient

evidence of juror bias to warrant a due process hearing because the state court’s

misapprehension of the record “goes to a material factual issue that is central to

petitioner’s claim.” Taylor, 366 F.3d at 1001.

      AFFIRMED.




                                          8
