NO. 13-56024 IN THE UNITED STATES COURT OF APPEALS …cdn.ca9.uscourts.gov/datastore/uploads/enbanc/13-56024pfr.pdf · Godoy was convicted of one count of second degree murder (Cal

NO. 13-56024______________________________________________________

IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

________________________________________________________

ENRIQUE GODOY, )) (D.C. 2:10-cv-07927-R-AGR)

Petitioner-Appellant ) C.D. Cal. )

v. ))

MARION SPEARMAN, et al., ))

Warden )Respondent )

_________________________

Appeal from the United States District CourtFor the Central District of California

_____________________________________________________

PETITION FOR PANEL REHEARING AND SUGGESTION FOR REHEARINGEN BANC

_______________________________________________________

Stephanie M. Adraktas, State Bar #215323

2625 Alcatraz Avenue, #233Berkeley, CA 94705

(415) 699-1507Attorney for Appellant

Case: 13-56024, 10/11/2016, ID: 10155137, DktEntry: 41-1, Page 1 of 19

TABLE OF CONTENTS

I STATEMENT OF REASONS FOR PANEL REHEARING OR EN BANCREVIEW . .. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

A. Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

B. Procedural Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

1. State Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

2. Federal Court Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

C. Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

1. This Case Presents Issues of Exceptional ImportanceConcerning The Right to a Fair and Impartial Jury. . . . . . . . . . 5

a. The Majority Opinion Conflicts With Supreme Court andCircuit Authority Concerning the Presumption ofPrejudice Arising From Jury Misconduct . . . . . . . . . . . . 6

b. The Majority Opinion Altered Settled Law When It HeldThat the Presumption of Prejudice Due to JuryMisconduct Can Be Rebutted Without ContraryEvidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

c. The Majority Opinion Conflicts With Supreme Court andCircuit Authority Requiring Trial Judges to Conduct anIndependent Inquiry Into Jury Misconduct .. . . . . . . . . 12

CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

CERTIFICATE OF SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16


TABLE OF AUTHORITIES

Federal Cases

Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691 (9 Cir. 2004).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 7, 8, 9, 10th

Dietz v. Bouldin, 136 S.Ct. 1885 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5

Dyer v. Calderon, 151 F.3d 970 (9 Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . 13th

Godoy v. Spearman, ___F.3d ___, 2016 Westlaw 4473249, No. 13-56024 (Aug.25, 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1, 4

Mattox v. United States, 146 U.S. 140 (1892). . . . . . . . . . . . . . . . . . . . . . 2, passim

Parker v. Gladden, 385 U.S. 363 (1966)(per curiam). . . . . . . . . . . . . . . . . . . . . . . 2

Remmer v. United States, 347 U.S. 227 (1954). . . . . . . . . . . . . . . . . . . . . 2, passim

Sims v. Rowland, 414 F.3d 1148 (9 Cir. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . 14th

Smith v. Phillips, 455 U.S. 209 (1982). . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 12, 13

Tarango v. McDaniel, 815 F.3d 1211 (9 Cir. 2016) . . . . . . . . . . . . . 2, 8, 9, 10, 12th

Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248 (1981). . . . . . . . . . . . . . . . . 11

Tong Xiong v. Felker, 681 F.3d 1067 (9 Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . 7th

Turner v. Louisiana, 379 U.S. 466 (1965). . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 5, 7

United States v. Dutkel, 192 F.3d 893, 899 (9th Cir.1999). . . . . . . . . . . . . . . . . . . 8

.


1. Introduction

Petitioner-Appellant Enrique Godoy respectfully requests panel rehearing or

rehearing en banc of the published decision in this case pursuant to Fed. R. App

Proc. 40 and Circuit Rule 40-1, and Fed. R. App. Proc. 35 and Circuit Rule 35-1 to

-3.

The majority opinion holds that when a sitting juror continuously

communicated with an unnamed “judge friend” about a trial and relayed messages

from that judge to the other jurors, the trial court need not conduct an evidentiary

hearing to determine the extent of the misconduct. The majority opinion also

holds that the presumption of prejudice due to the juror’s misconduct was

overcome by the prosecution, even though the prosecutor introduced no evidence

to rebut the presumption. Godoy v. Spearman, 2016 Westlaw 4473249, * 4-13,

No. 13-56024, at pp. 17-30 (Aug. 25, 2016). 1

Judge Fisher dissented, arguing that the trial court’s failure to conduct an

adequate inquiry into the juror’s misconduct violated Godoy’s right to due

process. As set forth in more detail below, rehearing or rehearing en banc should

be granted because the majority opinion misreads Remmer v. United States, 347

This petition will refer to the panel opinion by Westlaw page cite as well1

as the page in the attached slip opinion.

1


U.S. 227, 229 (1954), Mattox v. United States, 146 U.S. 140, 150 (1892), Turner

v. Louisiana, 379 U.S. 466, 472-73 (1965), Smith v. Phillips, 455 U.S. 209, 217

(1982), Dietz v. Bouldin, 136 S.Ct. 1885, 1894 (2016) and Parker v. Gladden, 385

U.S. 363, 365 (1966)(per curiam).

The majority opinion also conflicts with Caliendo v. Warden of Cal. Men’s

Colony, 365 F.3d 691, 696 (9 Cir. 2004)(en banc) because it places new limits onth

the Mattox and Turner presumption of prejudice and “all but eliminates” Smith’s

requirement that the trial court conduct an adequate inquiry into jury misconduct.

Opinion, at * 33, p. 14 (Fisher, J., dissenting).

The majority’s conclusion that no evidentiary hearing was required in this

case also conflicts with Tarango v. McDaniel, 815 F.3d 1211 (9 Cir. 2016) andth

the decisions of at least four other circuits. Opinion at * 47, p. 19. (Fisher, J.,

dissenting). The majority opinion explicitly questions the “correctness of

Tarango’s broad holding,” creating inconsistency in this circuit’s decisions.

Opinion at * 16, p. 6.

Accordingly, this case presents questions of exceptional importance that

should be decided by this Court sitting en banc. Moreover, rehearing is necessary

to ensure uniformity of decisions. Fed. R. App. Proc. 35(a)(2). Fed. R. App. Proc.

35; 9 Cir. Rules 35-1 to -3. In the alternative panel rehearing should be granted.th

2


Fed. R. App. Proc. 40, Cir. Rule 40-1.

B. Procedural Background

1. State Court Proceedings

Godoy was convicted of one count of second degree murder (Cal. Penal

Code § 187), and an allegation that he had used a knife in commission of the

offense pursuant to Cal. Penal Code §12022(b)(1). On June 29, 2006, the trial

court sentenced Godoy to a prison term of sixteen years to life. 2 CT 371.

While Godoy’s direct appeal was pending, he filed a petition for a writ of

habeas corpus in the California Court of Appeal. Lodged Record No. 2. The

petition included new evidence: declarations of an alternate juror, trial counsel and

appellate counsel. On March 18, 2009, Godoy's motion to consolidate

consideration of the appeal and the habeas corpus petition was denied. ER 42.

On March 18, 2009, the California Court of Appeal affirmed the conviction

and sentence. ER 45. The same day, the Court of Appeal denied Godoy's petition

for a writ of habeas corpus on grounds that he had not stated a prima facie case for

relief. ER 42.

Godoy filed in the California Supreme Court a petition for review on direct

appeal and a separate petition for review of the order denying his petition for a

writ of habeas corpus. Lodged Documents 8 (habeas corpus) and 6 (direct appeal).

3


On July 8, 2009, the California Supreme Court denied the petitions for review

without comment or citation to authority. ER 40, 41.

2. Federal Court Proceedings

On July 21, 2011, Godoy timely filed a petition for writ of habeas corpus in

the district court. CR 2. The district court denied the petition on the merits on May

15, 2013, and on the same date, it declined to issue a certificate of appealability.

ER 4, 5. After Godoy timely filed a notice of appeal, this Court issued a certificate

of appealability on April 3, 2014. ER 1.

On August 25, 2016, this Court issued a divided published opinion,

affirming the decision of the district court. Godoy v. Spearman, ___F.3d ___ 2016

WL 4473249, No. 13-56024, (August 25, 2016.) The majority opinion held that

the trial court was not required to take testimony of witnesses concerning the jury

misconduct that occurred in this case. Id at * 7, p. 17. The majority also held that

the presumption of prejudice due to the jury misconduct was rebutted by the

prosecution even though the prosecutor did not put on any evidence to establish

that the misconduct was harmless. Id.

The dissenting opinion by Judge Fisher concludes that the trial court

unreasonably applied Supreme Court precedent when it failed to conduct an

evidentiary hearing as to the jury misconduct. The dissenting opinion also argues

4


that the majority’s analysis is contrary to Mattox, Remmer, Smith and Dietz as well

as this Court’s en banc decision in Caliendo and other Ninth Circuit precedents.

Opinion at * 13-21, p. 31-52. The dissent also argues that the majority’s treatment

of the presumption of prejudice due to jury misconduct violates “black letter law”

concerning the operation and effect of evidentiary presumptions. Id at * 15, p. 36.

Because the trial court failed to conduct an adequate inquiry into the jury

misconduct at Godoy’s trial, the dissent would vacate the judgment and remand

the case with instructions to conduct an evidentiary hearing concerning the jury

misconduct. Id at * 20, p. 51.

ARGUMENT

I. This Case Presents Issues of Exceptional Importance ConcerningThe Right to a Fair and Impartial Jury

The right to a fair trial by jurors who are untainted by external influences

“goes to the fundamental integrity of all that is embraced in the constitutional

concept of trial by jury.” Turner v. Louisiana, 379 U.S. 466, 472-473 (1965). The

majority opinion in this case undermines crucial and established procedural

safeguards: the presumption of prejudice when there is jury misconduct and the

right to an adequate trial court inquiry into the content and extent of the

misconduct. As set forth in more detail below panel rehearing or rehearing en banc

5


is necessary to settle these important questions of law and to ensure uniformity of

decision.

a. The Majority Opinion Conflicts With Supreme Court and CircuitAuthority Concerning the Presumption of Prejudice ArisingFrom Jury Misconduct

This Circuit’s conflicting decisions concerning the operation of the

presumption of prejudice arising from jury misconduct should be resolved and

clarified by en banc review. The majority opinion in this case unnecessarily

creates ambiguity in this circuit’s decisions when it questions whether the

mandatory presumption of prejudice should have applied to Godoy’s jury

misconduct claim. Opinion at * 6, p. 16.

The majority opinion suggests that the evidence of misconduct in this case –

a juror exchanged text messages with a judge, and relayed information from the

judge to the jury throughout the trial –was insufficient to warrant the presumption

of prejudice. Opinion at * 6, p. 16.

Under Mattox, the presumption applies to even “possibly prejudicial”

external influences. That rule is necessary in order to protect jury verdicts from

even a “suspicion” of extrinsic influence. Mattox at p. 149. Accordingly, the

presumption of prejudice has applied to even a “vague allegation” of jury

tampering. Opinion at * 16, p. 39 citing Caliendo at p. 697, Tarrango at p. 1221

6


and Tong Xiong v. Felker, 681 F.3d 1067, 1077 (9 Cir. 2012). Caliendo andth

Xiong hold that the presumption of prejudice applies in every case where extrinsic

communications “could have influenced the verdict.” Opinion at * 17, p. 40.

The recent decisions of this Court have applied the presumption of prejudice

inconsistently, eliciting dissenting opinions that fundamentally disagreed with the

majority’s interpretation of Supreme Court cases. In Tong Xiong v. Felker, this

Court held that a juror’s out of court observations of a witness, which were relayed

to and discussed by other members of the jury, were not prejudicial because the

witness’s credibility had been impeached by other evidence. Tong Xiong, at 1078.

The dissenting opinion in Tong Xiong criticized the majority’s reliance on

Remmer’s rebuttable presumption, arguing that Turner requires reversal per se

whenever a jury is contaminated by outside influences. Tong Xiong at pp. 1081-

82.

The Xiong dissent also argued that the misconduct in that case was just as

“corrosive” of the defendant’s right to due process as the comments of a bailiff or

guard that led to the reversals in Mattox and Turner. Tong Xiong, at 1082.

The Xiong majority and the majority opinion in this case fundamentally

altered the rules for adjudicating issues of jury misconduct, rules that were long

ago settled and clear cut. Prior to Xiong, this Court’s en banc decision in Caliendo

7


surveyed the relevant Supreme Court decisions, concluding that the Mattox

presumption of prejudice applies when a jury’s consideration of extra record

evidence creates the potential for jury prejudice. Caliendo, supra at p. 697. A new

trial is required unless the prosecution establishes that there is no reasonable

possibility that the communication influenced the verdict. Id; United States v.

Dutkel, 192 F.3d 893, 899 (9th Cir.1999).

A more recent split decision is Tarango v. McDaniel, 815 F.3d 1211 (9th

Cir. 2016), a criminal case where police officers were seriously injured in a

shooting incident. A hold out juror was followed by a police car when he was

driving home. After the tail gating incident, the hold out juror changed his vote to

guilty. Id at 1227. The majority overturned the state court’s decision that the tail

gating was not a “communication” and remanded the matter for an evidentiary

hearing. Id at The majority in Tarango described the Mattox presumption of

prejudice as a “bright line rule” that “absolutely” forbids external influences, “at

least until their harmlessness is made to appear.” Tarango at 1221, citing Caliendo

at 696.

The Tarango majority aligns with Caliendo and conflicts with the majority

in this case, where it holds that external communications that concern the “matter

pending before the jury” not just those concerning the defendant’s guilt or

8


innocence, give rise to the Mattox presumption of prejudice. Tarango also reasons

that external contact between a juror and a judicial officer almost “categorically”

risks influencing the verdict. Id at p. 1222. The majority in this case applied

Tarango reluctantly, and explicitly disagreed with it. Opinion at * 6, p. 16.

The Tarango dissent criticizes the majority for overruling the state court’s

determination that the tail gating incident was not a “communication” with the

hold out juror. Tarango at p. 1228-29 (Rawlinson, J., dissenting). The dissent also

argued that Mattox, Remmer and other precedents cited by the majority involved

undisputed allegations of jury tampering. Id at 1230-31. The Tarango dissent

contended that the majority should not rely on “older” cases that are too general to

control the outcome of cases governed by the AEDPA. Id at 1231. According to

the dissent, the tail gating incident was also too vague and speculative to require a

presumption of prejudice. Id at p. 1233.

The majority opinion in this case also conflicts with this Court’s en banc

conclusion that the Mattox presumption applies only when there are extrinsic

communications with a witness or interested party. Opinion at * 16, p. 40 citing

Caliendo, at p. 697. The majority’s attempt to limit the Mattox presumption

conflicts with Mattox, Tarango, and Caliendo.

9


b. The Majority Opinion Altered Settled Law When It Held Thatthe Presumption of Prejudice Due to Jury Misconduct Can BeRebutted Without Contrary Evidence

The majority opinion fundamentally alters the effect of the presumption of

prejudice due to jury misconduct. Contrary to the Supreme Court’s decisions in

Mattox and Remmer and this Court’s decisions in Caliendo and Tarango, the

majority holds that the government need not produce evidence to overcome the

presumption of prejudice and that the same evidence, a juror affidavit, both

established and rebutted the presumption. Opinion at * 8-9, pp. 17-18.

By definition, a presumption settles a contested factual issue unless the

adversely affected party rebuts the presumption with contrary evidence. Opinion at

* 14-15, p. 36 (Fisher, J., dissenting). The majority opinion defies settled law and

creates a novel rule in this circuit: that the presumption of prejudice may be

rebutted by the persuasive arguments of the government’s lawyers, even if the

government presents no evidence that the jury misconduct was harmless. Opinion

at * 7, p. 18.

As the dissent emphasized, the burden of producing evidence to rebut an

evidentiary presumption and the burden to persuade a fact finder are not co-

extensive. A party that bears the burden of proof on an evidentiary issue, such as

the presumption of prejudice here, must present evidence, not just argument, in

10


order to sustain its burden. Opinion at * 15, p. 36 citing Tex. Dep't of Cmty. Affairs

v. Burdine, 450 U.S. 248, 254 (1981).

Judge Fisher’s dissent also points out that the majority cites to no cases

where an analogous presumption could be overcome without contrary evidence.

Id. The dissent also contends that, at best, the majority treats the Remmer

presumption of prejudice as a “tie breaker” that “applies when the court cannot

determine the nature of the alleged prejudice.” Opinion at * 15, p. 37. The dissent

argues that the majority misapplied even that formulation of the rule, because there

was no inquiry into the content and extent of the misconduct in this case. If the

presumption operated as a tie breaker, the decision should have favored Godoy. Id.

The majority relies on N.L’s description of certain text messages as

procedural to come to the speculative conclusion that all of the communications

concerned benign procedural matters. Opinion at * 7, p. 18. However, N.L.’s

declaration did not purport to include all of the information relayed to the jury by

Juror 10's “judge friend.” Therefore it was impossible to conclude that there was

no prejudice to Godoy based on her declaration alone. Because there was no

testimony taken concerning the content and extent of the improper

communications, the majority’s conclusion that they all concerned benign

procedural maters is unfounded.

11


In summary, under Remmer and Mattox the state court was required to

presume that the communications were prejudicial and to require the government

to rebut the presumption. Even if the Remmer presumption has been reduced to a

“tie breaker,” the state courts unreasonably resolved the tie against Godoy. Judge

Fisher accurately summarized the record when he concluded that the state court

had applied the Mattox presumption “in name alone.” Opinion at * 14-15, p. 36.

c. The Majority Opinion Conflicts With Supreme Court and CircuitAuthority Requiring Trial Judges to Conduct an IndependentInquiry Into Jury Misconduct

One of the most substantial changes to existing law in the majority opinion

is it’s conclusion that the trial court had no independent duty to conduct an

evidentiary hearing when presented with evidence of jury misconduct. Opinion at

*10-11, pp. 25-26. While Smith and Remmer require the trial court to make an

adequate inquiry into the nature and extent of jury misconduct, the new rule

created by the majority opinion excuses trial courts from their investigatory duty if

the court can infer that the misconduct may not have influenced the outcome of the

trial.

The majority opinion conflicts with Supreme Court authority, this Court’s

prior decisions, and the decisions of other circuits. Opinion at * 19, p. 47, fn 6

(“the majority’s holding conflicts with Tarango and at least four other

12


circuits”)(Fisher, J., dissenting). Under settled authority, when the prejudicial

effect of external communications is unclear, an evidentiary hearing is mandatory.

Smith at p. 217; Tarango, at p. 1224. While the trial court may determine the scope

and form of the hearing, it must conduct an investigation that is “reasonably

calculated” to resolve any doubts concerning the effect of extrinsic influences on

the jury. Dyer v. Calderon, 151 F.3d 970, 974-75 (9 Cir. 1998)(en banc). th

The majority opinion in this case not only obscures a constitutional duty

that was clear cut, it also allows trial courts to make an end-run around the

Remmer/Smith hearing rule and essentially eliminates the hearing requirement for

jury misconduct cases in the Ninth Circuit.

The dissenting opinion concludes that the trial court’s failure to conduct an

evidentiary hearing makes it impossible to determine if the presumption of

prejudice could have been overcome by contrary evidence in this case. Id at * 20,

p. 51. Because the record was never fully developed, the state court’s conclusion

that the text messages related to benign “procedural matters” was speculative.

Judge Fisher’s dissent contends that, without a hearing, the state court could not

have correctly concluded “either way - whether the juror’s text messages with her

“judge friend” actually concerned non-prejudicial matters.” Opinion at * 15, p.

37. Ultimately the state court and the majority opinion unreasonably applied

13


Remmer and Mattox because they decided the issue based on an undeveloped and

ambiguous record. Id.

The majority’s analysis also focuses on trial counsel’s uneven

representation and fails to acknowledge the trial court’s independent duty to

conduct an investigatory hearing. Opinion at * 9-11, pp. 24-27. As the dissent

emphasized, the trial court did not offer to take testimony concerning the

misconduct allegations. Opinion at *20, p. 49. The majority’s conclusion that

Godoy’s counsel somehow bypassed that opportunity is contrary to the record.

Ultimately, the majority opinion conflicts with Sims v. Rowland, 414 F.3d 1148

(9 Cir. 2005) which explicitly holds that a trial judge may not decline toth

investigate when presented with evidence of possible jury bias. Sims at p. 1156.

In summary, the trial court should have heard evidence concerning the

content and frequency of the juror’s text messages with her “judge friend” and the

extent to which information from the judge was conveyed to the other jurors.

Because the trial did not resolve those questions, the majority opinion concluded

incorrectly that the trial court’s procedures complied with due process. Panel

rehearing or en banc review is necessary to resolve these important issues and to

ensure uniformity of decisions.

14


CONCLUSION

For the reasons set forth above, this Court should grant panel rehearing or

rehearing en banc.

Dated: October 11, 2016 Respectfully submitted,

/s/ Stephanie M. AdraktasCal. Bar No. 215323Attorney for Enrique Godoy

CERTIFICATE OF COMPLIANCE

This brief complies with the type-volume limitations of Fed. R. App. Proc.

35 (b)(2) and Circuit Rule 40-1, because the brief contains no more than 15 pages,

excluding the parts of the brief exempted by Fed. R. App. Proc. 32.

Dated: October 11, 2016.

Respectfully submitted, /s/ Stephanie M. AdraktasCal. Bar No. 215323Attorney for Petitioner/Appellant

15


CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court for the United States Court of Appeals for the Ninth Circuit by using the

appellate CM/ECF system on October 11, 2016.

I certify that all case participants in the case are registered CM/ECF users

and that service will be accomplished by the appellate CM/ECF system.

Dated: October 11, 2016.

Signature: /s Stephanie M. Adraktas Counsel for Petitioner/AppellantEnrique Godoy

16


13-56024

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ENRIQUE ANTHONY GODOY,

Petitioner and Appellant,

v.

MARION SPEARMAN Warden,

Respondent and Appellee.

On Appeal from the United States District Courtfor the Central District of California

Case No. CV 10-07927-RThe Honorable Manuel L. Real, Judge

OPPOSITION TO PETITION FORREHEARING WITH SUGGESTION FOR

REHEARING EN BANC

KAMALA D. HARRISAttorney General of CaliforniaGERALD A. ENGLERChief Assistant Attorney GeneralLANCE E. WINTERSSenior Assistant Attorney GeneralKENNETH C. BYRNESupervising Deputy Attorney GeneralSTEPHANIE A. MIYOSHIDeputy Attorney GeneralState Bar No. 190394

300 South Spring Street, Suite 1702Los Angeles, CA 90013Telephone: (213) 897-8784Fax: (213) 897-6496Email: [email protected]

Attorneys for Respondent and Appellee

Case: 13-56024, 11/07/2016, ID: 10188353, DktEntry: 43, Page 1 of 24

TABLE OF CONTENTS

Page

i

Introduction ................................................................................................. 1Argument ..................................................................................................... 2

Rehearing by the panel or En Banc is unwarranted onPetitioner’s juror misconduct claim because the majorityopinion does not misapprehend any facts or law, does notraise a question of exceptional importance, and does notconflict with existing authority ................................................ 2A. The majority opinion applied controlling federal

authority and presumed that Petitioner wasprejudiced by the alleged juror misconduct .................... 3

B. The majority opinion does not conflict with, oralter, clearly established law regarding what isnecessary to rebut the presumption of prejudice ............. 5

C. The majority opinion is consistent with supremecourt and circuit precedent; moreover, Petitionerhad an opportunity to present additional evidenceand failed to do so .......................................................... 9

Conclusion ................................................................................................. 15


TABLE OF AUTHORITIES

Page

ii

CASES

Barnes v. Joyner751 F.3d 229 (4th Cir. 2014) ............................................................ 11, 12

Boyd v. Allen592 F.3d 1274 (11th Cir. 2010) ................................................................ 7

Caliendo v. Warden of Cal. Men’s Colony365 F.3d 691 (9th Cir. 2004) ............................................................ 3, 4, 7

Dyer v. Calderon151 F.3d 970 (9th Cir. 1998) .................................................................. 14

Garcia v. Andrews488 F.3d 370 (6th Cir. 2007) ............................................................ 11, 12

Grotomeyer v. Hickman393 F.3d 871 F.3d 871 (9th Cir. 2004) ................................................... 11

Henry v. Ryan720 F.3d 1073 (9th Cir. 2013) ................................................................ 11

Lopez v. Smith135 S. Ct. 1 (2014) ............................................................................. 6, 10

Mattox v. United States146 U.S. 140 (1892) ..................................................................... 3, 4, 5, 6

Nevada v. Jackson133 S. Ct. 1990 (2013) ............................................................................. 6

Remmer v. United States347 U.S. 227 (1954) ........................................................................passim

Sims v. Rowland414 F.3d 1148 (9th Cir. 2005) ................................................................ 10


TABLE OF AUTHORITIES(continued)

Page

iii

Smith v. Phillips455 U.S. 209 (1982) ........................................................................... 9, 10

Stouffer v. Trammell733 F.3d 1205 (10th Cir. 2013) ........................................................ 11, 12

Tarango v. McDaniel815 F.3d 1211 (9th Cir. 2016)amended 2016 WL 4932197 (9th Cir. 2016) ................................. 3, 5, 13

Texas Dep’t of Cmty. Affairs v. Burdine450 U.S. 248 (1981) ................................................................................. 7

Thompson v. Borg74 F.3d 1571 (9th Cir. 1996) .................................................................... 7

Tracey v. Palmateer341 F.3d 1037 ........................................................................................ 10

Turner v. Louisiana379 U.S. 466 (1965) ............................................................................. 4, 5

Willard v. Pearson823 F.3d 1141 (7th Cir. 1987). (Pet. .) ............................................. 11, 12

Xiong v. Felker681 F.3d 1067 (9th Cir. 2012) .............................................................. 5, 6

STATUTES

Antiterrorism and Effective Death Penalty Act ........................................... 12


TABLE OF AUTHORITIES(continued)

Page

iv

COURT RULES

Fed. R. of App. P.35(a)(2) & 40 ........................................................................................... 135(b)(1)(A) .............................................................................................. 335(b)(1)(B) .............................................................................................. 340(a)(2) .................................................................................................... 3


1

Appellee-Respondent, Shawn Hatton, the acting Warden of the

Correctional Training Facility in Soledad,1 California, hereby opposes the

Petition for Panel Rehearing and Suggestion for Rehearing En Banc filed by

Appellant-Petitioner on October 11, 2016.2

Dated: November 7, 2016 Respectfully submitted,

KAMALA D. HARRISAttorney General of CaliforniaGERALD A. ENGLERChief Assistant Attorney GeneralLANCE E. WINTERSSenior Assistant Attorney GeneralKENNETH C. BYRNESupervising Deputy Attorney General

S/ STEPHANIE A. MIYOSHISTEPHANIE A. MIYOSHIDeputy Attorney GeneralAttorneys for Respondent and Appellee

1 Shawn Hatton is the acting Warden of the Correctional TrainingFacility, where Petitioner is currently incarcerated.

2 Hereafter, Respondent-Appellee refers to himself as “Respondent”and to Petitioner-Appellant as “Petitioner.”


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INTRODUCTION

This case involves misconduct in which a juror communicated with a

“judge friend” via text messages regarding procedural matters. The district

court denied Petitioner’s petition for writ of habeas corpus on May 15, 2013.

Petitioner appealed. In a published opinion on August 25, 2016, a divided

panel of this Court affirmed the decision of the district court, holding that

the California Court of Appeal did not unreasonably apply Supreme Court

precedent in concluding that the government had rebutted the presumption

of prejudice arising from the jury misconduct and that it was not necessary

to hold an additional evidentiary hearing to investigate the misconduct

further. (Opinion at 16-27.) The panel also found that the California Court

of Appeal’s affirmance of the trial court’s denial of a defense continuance

motion was reasonable. (Opinion at 27-30.) One judge of the panel

dissented on the jury misconduct issues. (Opinion at 31-52.)

Petitioner has filed a Petition for Panel Rehearing and Suggestion for

Rehearing En Banc pursuant to Rules 35(a)(2) and 40 of the Federal Rules

of Appellate Procedure. Petitioner claims that the majority opinion conflicts

with Supreme Court and this Court’s precedent regarding the presumption of

prejudice arising from jury misconduct, the type of evidence necessary to

rebut the presumption of prejudice, and whether an independent inquiry into

such misconduct is required. However, after discussing federal precedent on


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the issue of jury misconduct, the majority opinion applied a test that

presumed prejudice. Consistent with Supreme Court precedent, the majority

found that the government had sufficiently rebutted the presumption of

prejudice and that it was not necessary to hold an additional evidentiary

hearing on the juror misconduct claim. Because Petitioner has not

established that the majority opinion has misapprehended any facts or law,

that the opinion raises any questions of exceptional importance, or that it

conflicts with existing authority, a rehearing by the panel or en banc is not

warranted. Therefore, the petition should be denied.

ARGUMENT

REHEARING BY THE PANEL OR EN BANC IS UNWARRANTED ONPETITIONER’S JUROR MISCONDUCT CLAIM BECAUSE THEMAJORITY OPINION DOES NOT MISAPPREHEND ANY FACTS ORLAW, DOES NOT RAISE A QUESTION OF EXCEPTIONALIMPORTANCE, AND DOES NOT CONFLICT WITH EXISTINGAUTHORITY

Petitioner asserts that rehearing by the panel or en banc is warranted

based on the majority’s opinion regarding whether the presumption of

prejudice for jury misconduct applies to this case, whether evidence must be

submitted to rebut that presumption, and whether an additional hearing into

the misconduct was required. (Pet. at 6-14.) A rehearing by the panel or a

rehearing en banc is not warranted because Petitioner has failed to establish

that the majority opinion has misapprehended any facts or law (Rule


3

40(a)(2)), that it raises any questions of exceptional importance (Rule

35(b)(1)(B)), or that it conflicts with existing authority (Rule 35(b)(1)(A)).

A. The Majority Opinion Applied Controlling FederalAuthority And Presumed That Petitioner Was Prejudicedby the Alleged Juror Misconduct

Petitioner argues that the majority decision conflicts with the decisions

in Mattox v. United States, 146 U.S. 140 (1892), Tarango v. McDaniel, 815

F.3d 1211 (9th Cir. 2016), amended 2016 WL 4932197 (9th Cir. 2016), and

Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691 (9th Cir. 2004)

when it “question[ed]” whether the presumption of prejudice should have

applied to Petitioner’s case. (Pet. at 6-9.) However, Petitioner has not

established that rehearing by the panel or en banc is warranted.

Regardless of what the majority might have stated regarding the

applicability of the presumption of prejudice to Petitioner’s case, the

majority applied this Court’s decision in Tarango v. McDaniel as it was

“bound” by that decision, and applied a presumption of prejudice. (Opinion

at 15-16.) Thus, contrary to Petitioner’s assertion, the majority opinion does

not conflict with federal precedent.

Although the majority indicated it was “skeptical” Supreme Court

precedent required a presumption of prejudice (Opinion at 14) and

questioned “the correctness of Tarango’s broad holding” (Opinion at 16),

these statements were dicta. The majority was right to question the


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correctness of Tarango’s broad holding. Petitioner contended that he was

entitled to a presumption of prejudice under Mattox v. United States, 146

U.S. at 143, involving a bailiff telling the jury that the defendant had killed

two other people and the jury reading an article describing the evidence as

strong, Remmer v. United States, 347 U.S. 227, 228-29 (1954), involving

jury tampering, and Turner v. Louisiana, 379 U.S. 466, 468-69 (1965),

involving the use of two local sheriffs to provide for the jury’s daily needs

even though they were the key witnesses in the case.

Unlike the cited cases, however, this case involves a juror

communicating via text messages with a “judge friend” about procedural

matters. The type of misconduct here does not involve jury tampering,

communications regarding the guilt or innocence of Petitioner, or a

continuing association between the juror and someone associated with

Petitioner’s trial and, thus, the majority appropriately questioned whether

Supreme Court cases dictated a presumption of prejudice in this case. The

majority’s dicta does not conflict with Caliendo, which stated that there was

a “bright-line rule” that “[a]ny unauthorized communication between a juror

and a witness or interested party is presumptively prejudicial.” Caliendo v.

Warden of Cal. Men’s Colony, 365 F3d at 696. As noted, the

communication here did not involve a witness or interested party. Rather

than creating any conflict with this Court’s precedent, the dicta here was


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actually consistent with it. See Xiong v. Felker, 681 F.3d 1067, 1076-77 (9th

Cir. 2012) (distinguishing Mattox, Remmer, Turner, but nonetheless

applying a rebuttable presumption of prejudice). But, most importantly, the

majority noted it was “bound” by Tarango and presumed prejudice. Thus,

rehearing is not warranted in this case.

B. The Majority Opinion Does Not Conflict with, Or Alter,Clearly Established Law Regarding What Is Necessary toRebut the Presumption of Prejudice

Petitioner contends that rehearing is necessary because the majority

opinion “fundamentally alters” settled case law by finding that the

presumption of prejudice was rebutted. (Pet. at 10-12.) This argument must

be rejected because the majority opinion was consistent with controlling

precedent.

Once prejudice is presumed from jury misconduct, the government has

the burden to establish that the misconduct was harmless to the defendant.

Remmer v. United States, 347 U.S. at 229. Although the State “carries a

heavy burden, the Government may overcome the presumption of prejudice

with proof that the jury’s consideration of extrinsic evidence was harmless.”

Xiong v. Felker, 681 F.3d at 1077.

Here, the majority found that the California Court of Appeal did not

unreasonably apply Supreme Court precedent in concluding that the

government had rebutted the presumption of prejudice by pointing out that


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the misconduct was based on a declaration of an alternate juror who had no

personal knowledge of jury deliberations and that the evidence did not show

the communications involved anything prejudicial to Petitioner or anything

about the evidence in the case. (Opinion at 16-18.) The majority’s holding

is consistent with existing Supreme Court precedents, none of which

explicitly requires the government to produce new evidence or testimony to

rebut the presumption of prejudice. See Remmer v. United States, 347 U.S.

at 229 (to rebut presumption, government must “establish” that contact with

juror was harmless); Mattox v. United States, 146 U.S. at 150

(communications between jurors and third persons ”invalidate the verdict, at

least until their harmlessness is made to appear”). Thus, Supreme Court

precedent requires the government to persuade the court that the misconduct

was harmless, but it does not require the State to actually produce any

evidence. See Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (“We have before

cautioned lower courts—and the Ninth Circuit in particular—against

‘framing our precedents at such a high level of generality.’”); Nevada v.

Jackson, 133 S. Ct. 1990, 1994 (2013) (criticizing the “imaginative

extension of existing law into ‘clearly established Federal law,’” by framing

Supreme Court precedents “at such a high level of generality”).

Although this Court has stated that the presumption can be rebutted by

“strong contrary proof of harmlessness” (Xiong v. Felker, 681 F.3d at 1077-


7

78), it has not stated that this proof must consist of additional evidence.

Instead, this Court has explained that the government must “show[] that

there is no reasonable possibility that the communication will influence the

verdict” and has indicated that factors that rebut prejudice include whether

the communication concerned the case, “the length and nature of the

contact,” and the “identity and role at trial of the parties involved.”

Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d at 696; see Thompson v.

Borg, 74 F.3d 1571, 1576 (9th Cir. 1996) (finding prejudice rebutted by the

strong evidence the defendant stabbed the victim, the jury’s rejection of the

prosecution’s case for first degree murder, the jury’s questions about self-

defense, and the length of the deliberations); see also Boyd v. Allen, 592

F.3d 1274, 1305-06 (11th Cir. 2010) (finding prejudice rebutted by

information contained in petitioner’s declarations, the evidence submitted at

trial, and the overwhelming nature of the evidence). None of these factors

necessarily require the submission of additional evidence by the

government.

Petitioner’s citation to Texas Dep’t of Cmty. Affairs v. Burdine, 450

U.S. 248 (1981) does not establish that the majority’s opinion conflicts with

existing precedent. (Pet. at 10-11.) Burdine does not involve a jury

misconduct claim, but instead involves the burdens that apply to cases

involving unlawful discrimination. See Texas Dep’t of Cmty. Affairs v.


8

Burdine, 450 U.S. at 253-54. Petitioner cites to no authority specifying the

only way to rebut the presumption of prejudice in a jury misconduct case is

for the prosecutor to submit evidence.

Petitioner asserts that the majority opinion cites to no authority “where

an analogous presumption could be overcome without contrary evidence.”

(Pet. at 11.) However, such a citation is not necessary when the majority has

shown that Supreme Court precedent does not require the prosecution to

produce evidence to rebut the presumption of prejudice.

Petitioner contends that the majority improperly relied on alternate

juror N.L.’s description of the text messages as procedural to conclude that

all of the communications were benign. (Pet. at 11.) However, the

majority’s conclusion was reasonable. The declaration of N.L. stated that

“[w]hen the jury was not sure what was going on or what procedurally

would happen next,” the seated juror would communicate with her friend

and “disclose to the jury what he said.” (ER at 158.) N.L. indicated no

other instances of misconduct and never specified that any of the

communications concerned the evidence in the case or anything prejudicial

to Petitioner.3

3 The subsequent declaration of E.M., also an alternate juror, whoprovided a declaration to the California Court of Appeal on habeas, gave twoexamples of the communication: the judge-friend told the juror that another

(continued…)


9

C. The Majority Opinion Is Consistent with Supreme CourtAnd Circuit Precedent; Moreover, Petitioner Had anOpportunity to Present Additional Evidence And Failedto Do So

Petitioner contends that the majority opinion conflicts with federal

precedent by concluding that an additional evidentiary hearing was not

necessary. (Pet. at 12-14.) However, consistent with existing precedent, the

majority opinion held that an additional hearing was not necessary;

moreover, even if some hearing was necessary, Petitioner received an

adequate opportunity to present evidence and failed to do so.

The two Supreme Court cases that are most analogous to Petitioner’s

situation are Remmer v. United States and Smith v. Phillips, 455 U.S. 209

(1982). However, neither case requires that a hearing be held in this case.

In Remmer, the defendant learned after he was convicted that someone

told the jury foreman that the foreman could profit by a verdict in

defendant’s favor. Remmer v. United States, 347 U.S. at 228. After a

meeting with the “prosecutor’s alone,” the court determined that no

misconduct had occurred. Id. In that situation, the Supreme Court held that

a trial could “should not decide and take final action ex parte on information

(…continued)judge would take over the case if the trial judge had a medical procedureduring trial and that the juror should write a note to the judge if she wantedto be excused from the jury for a planned business trip. (ER at 62-63.)


10

such as was received in this case,” but should instead make a determination

after a “hearing with all interested parties permitted to participate.” Id. at

229-30.

In Smith, the defendant learned that one of the jurors had applied for

employment with the prosecutor’s office. Smith v. Phillips, 455 U.S. at 212.

After the verdicts, the trial court held a hearing in which the prosecutor’s

and the juror testified. Id. at 213. The Supreme Court held that due process

principles required a jury that could decide the case based on the evidence

and a trial judge that was “ever watchful to prevent prejudicial occurrences

and to determine the effect of such occurrences when they happen.” Id. at

217. The Supreme Court noted that “[s]uch determinations may be properly

made at a hearing.” Id. (italics added).

Thus, neither Remmer nor Smith “stand for the proposition that any

time evidence of juror bias comes to light, due process requires the trial

court to question the jurors.” Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th

Cir. 2003) (italics in original). Indeed, Remmer “provides little prospective

guidance as to when a hearing is required or even appropriate.” Sims v.

Rowland, 414 F.3d 1148, 1154 (9th Cir. 2005). As a result, this Court has

determined that Remmer and Smith give trial courts considerable flexibility

in determining when a hearing on juror misconduct is appropriate; thus, the

majority opinion was a reasonable application of this Court’s precedent. See


11

Henry v. Ryan, 720 F.3d 1073, 10987 (9th Cir. 2013) (“‘An evidentiary

hearing is not mandated every time there is an allegation of jury misconduct

or bias.”); Grotomeyer v. Hickman, 393 F.3d 871 F.3d 871, 880-81 (9th Cir.

2004) (Remmer does not require an evidentiary hearing”).

Petitioner argues that the majority opinion conflicts with Barnes v.

Joyner, 751 F.3d 229 (4th Cir. 2014), Garcia v. Andrews, 488 F.3d 370 (6th

Cir. 2007), Stouffer v. Trammell, 733 F.3d 1205 (10th Cir. 2013), and

Willard v. Pearson, 823 F.3d 1141 (7th Cir. 1987). (Pet. at 12-13.)

However, these cases do not establish such a conflict.

Barnes involved a juror who read from the Bible and relayed the

opinion of a pastor during penalty phase deliberations. Barnes v. Joyner,

751 F.3d at 233-34. Stouffer involved nonverbal communication between a

juror and her husband inside the courtroom during the penalty phase.

Stouffer v. Trammell, 733 F.3d at 1216-17. The court in Barnes stated that

“not every allegation of an unauthorized communication between a juror and

a third party” will trigger the need for a hearing; instead, such a hearing is

required when the defense presents “a credible allegation of communications

or contact between a third party and a juror concerning the matter pending

before the jury.” Barnes v. Joyner, 751 F.3d at 242, 244 (italics added).

Stouffer similarly stated that a hearing is required when the trial court is

apprised “‘that an extrinsic influence may have tainted the trial,’” but was


12

not required when “the communication was not about the matter pending

before the jury.” Stouffer v. Trammell, 733 F.3d at 1214-15. Because the

communication here did not involve a matter pending before the jury, the

majority opinion does not conflict with Barnes or Stouffer.

Garcia v. Andrews does not conflict with the majority opinion because

it merely notes that “an evidentiary hearing delving into allegations of juror

misconduct is required only where ‘extrinsic influence or relationships have

tainted the deliberations.’” Garcia v. Andrews, 488 F.3d at 375. Indeed,

the court in Garcia found “no Supreme Court precedent that requires a

Remmer hearing on the facts before us.” Id. at 377. Here, the evidence did

not show that the communication between the juror and her “judge-friend”

had any impact on the deliberations and, thus, no hearing was required.

The decision in Willard v. Pearson also fails to assist Petitioner.

Although the court in Willard did state that due process required a hearing to

determine whether a “potentially compromising situation has affected the

jury’s ability to deliberate fairly,” the case predates the Antiterrorism and

Effective Death Penalty Act (AEDPA) and involved the “unusual situation”

in which a sequestered jury was allowed to tour the same jail that was

housing the defendant. Willard v. Pearson, 823 F.3d at 1148. In any event,

Willard conflicts with this Court’s precedent noting that Supreme Court

authority sets forth a flexible rule regarding whether a hearing is required.


13

Nor does the decision conflict with this Court’s decision in Tarango v.

McDaniel, which stated that a criminal trial court to consider and investigate

“the prejudicial effect of any external contact that has a ‘tendency’ to

influence the verdict, irrespective of whether it is about the matter pending

before the jury.” Tarango v. McDaniel, 2016 WL 4932197, at * 6. Here,

the state court did consider the prejudicial effect of the contact between the

juror and her “judge-friend.”

Even if some hearing on this point was required, Petitioner had the

opportunity to present evidence in the state court, including live testimony,

but failed to do so. Thus, contrary to Petitioner’s assertion, the majority

opinion does not “make an end-run around” a hearing requirement, nor does

it “essentially eliminate[] the hearing requirement for jury misconduct cases

in the Ninth Circuit.” (Pet. at 13.) Petitioner was not allowed to present

testimony at the first hearing in the trial court because his attorney failed to

provide discovery to the prosecution. (ER at 150-54.) Petitioner did not

present testimony at the second scheduled hearing because defense counsel

was unprepared. Nonetheless, the trial court reviewed a declaration

submitted by defense counsel and heard arguments by both sides before

ruling. (ER at 69-76.)

Thus, the record is clear that the trial court gave Petitioner’s attorney

two opportunities to have a hearing. The failure of Petitioner’s attorney to


14

take advantage of those hearings does not mean that the state court failed to

provide a hearing that was reasonably calculated to resolve any questions

regarding the effect of the extrinsic influence on the jury. See Dyer v.

Calderon, 151 F.3d 970, 975-76 (9th Cir. 1998) (investigation into juror

misconduct must be “reasonably calculated to resolve the doubts raised

about the juror’s impartiality”). Petitioner cites to no Supreme Court

precedent requiring the trial court to continue to hold additional hearings in

the face of defense counsel’s failure to offer any additional evidence.

Based on the foregoing, petitioner has not established that either a

rehearing by the panel or en banc is warranted. Therefore, the petition

should be denied.


15

CONCLUSION

For the foregoing reasons, rehearing en banc and panel rehearing

should be denied

Dated: November 7, 2016 Respectfully submitted,

KAMALA D. HARRISAttorney General of CaliforniaGERALD A. ENGLERChief Assistant Attorney GeneralLANCE E. WINTERSSenior Assistant Attorney GeneralKENNETH C. BYRNESupervising Deputy Attorney General

S/ STEPHANIE A. MIYOSHISTEPHANIE A. MIYOSHIDeputy Attorney GeneralAttorneys for Respondent and Appellee

LA2014612452


CERTIFICATE OF COMPLIANCEPURSUANT TO FED.R.APP.P 32(a)(7)(C) AND CIRCUIT RULE 32-1

FOR 13-56024

I certify that: (check (x) appropriate option(s))

x 1. Pursuant to Fed.R.App.P. 32(a)(7)(C) and Ninth Circuit Rule 32-1, the attached Opposition toPetition for Rehearing with Suggestion for Rehearing En Banc is

Proportionately spaced, has a typeface of 14 points or more and contains_3,127_____________ words (opening, answering and the second and third briefs filed incross-appeals must not exceed 14,000 words; reply briefs must not exceed 7,000 words

or isMonospaced, has 10.5 or fewer characters per inch and contains ____ words or ___ lines oftext (opening, answering, and the second and third briefs filed in cross-appeals must not exceed14,000 words or 1,300 lines of text; reply briefs must not exceed 7,000 words or 650 lines oftext).

2. The attached brief is not subject to the type-volume limitations of Fed.R.App.P. 32(a(7)(B)because

This brief complies with Fed.R.App.P 32(a)(1)-(7) and is a principal brief of no more than 30pages or a reply brief of no more than 15 pages.

orThis brief complies with a page or size-volume limitation established by separate court orderdated ______________ and is

Proportionately spaced, has a typeface of 14 points or more and contains ______________words,

or isMonospaced, has 10.5 or fewer characters per inch and contains __ pages or __ words or __lines of text.

3. Briefs in Capital Cases.This brief is being filed in a capital case pursuant to the type-volume limitations set forth at CircuitRule 32-4 and is

Proportionately spaced, has a typeface of 14 points or more and contains ______________words (opening, answering and the second and third briefs filed in cross-appeals must notexceed 21,000 words; reply briefs must not exceed 9,800 words).

or is

Monospaced, has 10.5 or fewer characters per inch and contains __ words or __ lines of text(opening, answering, and the second and third briefs filed in cross-appeals must not exceed 75pages or 1,950 lines of text; reply briefs must not exceed 35 pages or 910 lines of text).


4. Amicus Briefs.

Pursuant to Fed.R.App.P 29(d) and 9th Cir.R. 32-1, the attached amicus brief is proportionallyspaced, has a typeface of 14 points or more and contains 7,000 words or less,

or isMonospaced, has 10.5 or few characters per inch and contains not more than either 7,000words or 650 lines of text,

or isNot subject to the type-volume limitations because it is an amicus brief of no more than 15pages and complies with Fed.R.App.P. 32 (a)(1)(5).

November 7, 2016 s/ Stephanie A. Miyoshi

Dated Stephanie A. MiyoshiDeputy Attorney General


CERTIFICATE OF SERVICE

Case Name: Enrique Anthony Godoy v.Marion Spearman, Warden

No. 13-56024

I hereby certify that on November 7, 2016, I electronically filed the following documents withthe Clerk of the Court by using the CM/ECF system:

OPPOSITION TO PETITION FOR REHEARING WITH SUGGESTION FORREHEARING EN BANCI certify that all participants in the case are registered CM/ECF users and that service will beaccomplished by the CM/ECF system.I declare under penalty of perjury under the laws of the State of California the foregoing is trueand correct and that this declaration was executed on November 7, 2016, at Los Angeles,California.

Limin Chang s/ Limin ChangDeclarant Signature

LA201461245262178295.doc
