Habeas petitioner entitled to evidentiary hearing as to whether juror texting “judge friend” prejudiced the verdict. Following his conviction for second degree murder, Godoy moved for a new trial on the ground that Juror 10 had communicated about the case over text with a “judge friend” during trial. Godoy supplied a declaration from alternate juror N.L. describing Juror 10’s conduct. The trial court denied the motion without a hearing. After exhausting state court remedies, Godoy filed a federal habeas petition, which was denied. He appealed to the Ninth Circuit. Held: Reversed after rehearing en banc. When a defendant alleges improper conduct between a juror and an outside party, a two-step framework applies. At step one, the court asks whether the conduct was “possibly prejudicial.” If so, the contact is deemed presumptively prejudicial, and the burden shifts to the state to establish the contact was harmless (step two). When the presumption arises but the prejudicial impact is unclear from the existing record, the court must hold a hearing to determine prejudice. Here, the state court correctly found that N.L.’s declaration established a presumption of prejudice. However, instead of requiring the state to rebut this presumption, the court held the presumption was rebutted because nothing in N.L.’s declaration suggested the “judge friend” communicated prejudicial information. This improperly placed the burden on Godoy. The court then relied on the same statement in N.L.’s declaration to both raise the presumption and rebut the presumption of prejudice, which was error because the presumption can only be rebutted by “other, contrary evidence.” Finally, the court required Godoy to show a “strong possibility” of prejudice to obtain an evidentiary hearing, even though an evidentiary hearing is required when the prejudicial impact is unclear from the existing record. These holdings were contrary to clearly established federal law. The court remanded for a hearing to determine the prejudicial impact of Juror 10’s conduct.

The full opinion is available on the court’s website here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/30/13-56024.pdf