                            In the
 United States Court of Appeals
              For the Seventh Circuit
                         ____________

No. 02-4257
THOMAS O. MOORE,
                                           Petitioner-Appellant,
                               v.

STANLEY KNIGHT,
                                          Respondent-Appellee.

                         ____________
       Appeal from the United States District Court for the
       Northern District of Indiana, South Bend Division.
               No. 02 C 334—Allen Sharp, Judge.
                         ____________
      ARGUED APRIL 5, 2004—DECIDED MAY 20, 2004
                     ____________



 Before BAUER, POSNER, and DIANE P. WOOD, Circuit
Judges.
  BAUER, Circuit Judge. This habeas corpus appeal arises
from Thomas Moore’s conviction for rape and criminal de-
viate conduct in 1992. Moore raises two substantive issues
on appeal: (1) whether the state trial court judge violated
his right to a fair trial by authorizing ex parte communica-
tions with the jury, and (2) whether the prosecutor failed to
disclose exculpatory evidence in violation of Brady v.
Maryland, 373 U.S. 83, 86 (1963). In reviewing these ap-
peals, we find that the trial court judge’s ex parte communi-
cations with the jury were inappropriate and interfered
2                                                 No. 02-4257

with Moore’s constitutionally guaranteed right to a fair
trial. Accordingly, we reverse and remand to the District
Court to issue Moore’s writ, unless the state elects to retry
him within 120 days.


                        DISCUSSION
  Shortly after 11 p.m. on September 14, 1987 a man posing
as a police officer used flashing lights on his car to pull over
a woman identified as “A.B.”. During the course of the stop,
the man asked for the woman’s license and registration and
had her perform a field sobriety test. Following the test, he
put plastic restraints on her wrists, blindfolded her and
placed her in his car. The man drove A.B. to multiple
locations and raped her twice. Following these events, he
returned the victim to her car and sped away.
  At the subsequent trial, Moore presented an alibi defense
that he had been with his ex-wife from 7 p.m. until 12:20
a.m. on the night in question and returned to the home he
shared with his girlfriend around 12:20 a.m. He also argued
that the victim’s description of her attacker did not match
his physical description.
    Moore was convicted; he now raises two issues on appeal.


I. Ex Parte Communications with Jury
  During its deliberations at the conclusion of the trial the
jury sent a note to Judge Kathy Smith. The note contained
factual questions regarding Moore’s alibi; specifically, the
jury asked where Moore lived, the distance between the
Moore’s home and the location of the crime, and the time
Moore arrived home on the night in question. Judge Smith
responded to the questions, via the Bailiff, and did not dis-
cuss the matter with either attorney. None of this communi-
cation occurred on the record. Just prior to sentencing, the
No. 02-4257                                                  3

Judge informed Moore’s attorney of the jury’s questions;
this also occurred off the record. Moore’s attorney objected;
the Judge proceeded with sentencing. Moore now argues
that the Judge’s actions constituted ex parte communication
with the jury in violation of his right to a fair trial.
  Prior to determining the substantive value of this appeal
we first examine its timeliness. We review de novo the
District Court’s decision to dismiss a habeas corpus appeal
for being untimely. Lloyd v. Van Natta, 296 F.3d 630, 632
(7th Cir. 2002). Under 28 U.S.C. § 2244(d)(1), a defendant
has a one-year deadline to file an application for a writ of
habeas corpus. Pertinent to this case, the year will run from
the later of “the date on which the judgment became final”
or “the date on which the factual predicate of the claim or
claims presented could have been discovered through the
exercise of due diligence.” 28 U.S.C. § 2244(d)(1)(A),(D)
(2003). Moore contends that the triggering date was May
18, 1998—the day he received his investigator’s letter
detailing the results of his investigation into the ex parte
communications. The government contends that Moore
actually was aware of the existence of the claim prior to the
end of his trial, when Judge Smith communicated to both
attorneys that she had declined the jury’s request to review
testimony.
  The sequence of events relevant to this issue are as
follows. Moore’s trial took place in the fall of 1992; his con-
viction became final on March 28, 1997. In early 1997 one
of Moore’s friends, Mike Storms, informed him that, based
on overheard conversations, he believed the jury was “im-
properly led or coerced.” (Br. of Petitioner-Appellant at 11.)
Moore asked Storms to investigate. On May 18, 1998,
Storms sent Moore a letter revealing the results of his
investigation; the letter also contained two affidavits from
jurors in question. Moore filed his state Petition for Post-
Conviction Relief on January 5, 1999; one of the issues
raised in the Petition was the ex parte communications. The
4                                                      No. 02-4257

Judge considered the issue on its merits and denied Moore’s
appeal. After following proper procedural routes, Moore’s
appeal appeared before the United States District Court for
the Northern District of Indiana. The District Court
dismissed Moore’s petition for exceeding the limitation
period under 28 U.S.C. § 2244.1 In subsequently granting
Moore’s certificate of appealability, we asked counsel to
brief three issues, one of which was the timeliness of the
appeal.
  In determining the timeliness of this appeal we must
consider two issues, first, the date on which Moore dis-
covered the factual predicate of his claim, and second,
whether Moore exercised due diligence in discovering this
information. We agree with Moore that his appeal regarding
the ex parte communications was appropriately raised
within one year of his discovering the factual predicate
for his claim. Prior to receiving the letter and affidavits,
Moore did not know any specific information about what
had transpired between the Judge and the jurors—he could
only speculate as to what may have been said. Judge
Smith’s own explanation, which occurred off the record


1
  Judge Allen Sharp, writing for the District Court for the
Northern District of Indiana, South Bend division, although
denying Moore’s appeal for untimeliness, saw fit to comment:
      Candor requires this Court to express concerns over . . . the
    way that the state trial judge handled the problem of a jury
    question and its answer. It does not take very long for one to
    preside in either state or federal criminal jury trials to realize
    that when a jury is deliberating, the relationship between the
    court and that jury is an enormously sensitive one which
    must be approached by the judge with great care and re-
    straint. That simply was not done in this case.
(Memorandum and Order of Judge Allen Sharp of November 7,
2002 Dismissing Moore’s Petition For Relief under 28 U.S.C.
§ 2254. No. 3:02cv0334 AS at 3).
No. 02-4257                                                       5

and after the fact, was that she answered the juror’s note,
“by telling them that she could not give information or could
not answer those questions”—a statement that, if true, did
not present a basis for an actionable claim. (Br. of
Petitioner-Appellant at 23.) It was not until Moore dis-
cussed the matter with Storms that he had reason to
suspect the content of Judge Smith’s communications to the
jury was different than she had represented, and it wasn’t
until Moore obtained the jurors’ affidavits that he had
specific, concrete information regarding what had tran-
spired, upon which he could base his claim.2 Specifically,
whereas Judge Smith had indicated to Moore and his
attorney that she simply refused to answer the questions,
Storms’ investigation revealed at least one juror believed
the answers conveyed by the Bailiff contained commentary
on the content of testimony presented at trial (a situation
that could have prejudiced the outcome of his trial). It
follows that Moore simply did not have enough information
to state his claim until he received the May 18, 1998 letter
from Storms.
  Alongside the issue of when Moore discovered the factual
predicate for his claim is the question of whether Moore
exercised due diligence in conducting his investigation of
the incident. Although there was a lag between Storms’
initial discussion with Moore indicating that the jurors may
have had improper ex parte communications during trial
and Moore’s ultimate receipt of Storms’ letter, we find that
Moore was not dilatory in his investigation. We have


2
  One juror stated that the Judge communicated to the jury via
the Bailiff, and told them, “their question was not part of the
testimony so they couldn’t give us an answer.” Additionally, that
juror reported the Bailiff told the jury that, “no further questions
or review would be allowed.” A second juror remembered that they
were told, “the jury must make their decision on what they heard
in the court room.” (Br. of Petitioner-Appellant at 25).
6                                                No. 02-4257

previously noted that a due diligence inquiry should take
into account that prisoners are limited by their physical
confinement. Montenegro v. United States, 248 F.3d 585,
592 (7th Cir. 2001), rev’d on other grounds, Ashley v. United
States, 266 F.3d 671 (7th Cir. 2001); see also Easterwood v.
Champion, 213 F.3d 1321, 1323 (10th Cir. 2000) (finding a
prisoner’s access to published legal materials is established
once the prison library receives the materials, not when the
materials were published). Similarly, we agree with the
Second Circuit’s observation that 28 U.S.C. § 2244 does not
require “the maximum feasible diligence” but only “ ‘due,’ or
reasonable diligence.” Wims v. United States, 225 F.3d 186,
190 n.4 (2d Cir. 2000). Considering the facts within these
parameters, we agree that Moore acted with due diligence.
While imprisoned, he employed Storms to conduct the
investigation on his behalf; this employment began as soon
as Moore had reason to suspect a harmful error in proce-
dure and we do not find he was unreasonable in awaiting
the results of Storms’ somewhat slow investigation.
   Having cleared the first hurdle of timeliness, we now turn
to the merits of Moore’s claim. The Antiterrorism and
Effective Death Penalty Act of 1996 sets out the proper
standard of review for this appeal: We will not grant the
writ with respect to any claim that was adjudicated on the
merits in the state court proceedings unless the adjudica-
tion of the claim resulted in a decision that was contrary to,
or involved an unreasonable application of, clearly estab-
lished federal law or resulted in a decision that was based
on an unreasonable determination of the facts in light of the
evidence presented in state court proceedings. 28 U.S.C.
§ 2254(d). Factual findings made by a State court are
presumed correct, but may be rebutted by clear and con-
vincing evidence. 28 U.S.C. § 2254(e)(1).
  The Confrontation Clause of the Sixth Amendment pro-
vides defendants the right to be present at all critical stages
of the criminal proceedings. Illinois v. Allen, 397 U.S. 337,
No. 02-4257                                                  7

338 (1970); Ellsworth v. Levenhagen, 248 F.3d 634, 640 (7th
Cir. 2001). The Due Process Clause supplements this right
by protecting the defendant’s right to be present during
some stages of the trial where the defendant’s ability to
confront a witness against him is not in question—ex parte
communications between the judge and jury fall into this
category. United States v. Gagnon, 470 U.S. 522, 526 (1985).
Such communications between the judge and jury will
violate the defendant’s right only when the defendant’s
presence, “has a relation, reasonably substantial, to the
fulness of his opportunity to defend against the charge.” Id.
(quoting Snyder v. Massachusetts, 291 U.S. 97, 105-06
(1934)). Specifically, we look to see if the communications
had a prejudicial effect on the defendant and rendered the
trial “fundamentally unfair.” Ellsworth, 248 F.3d at 640.
  When ex parte communications with the jury occur off the
record, determining whether those communications resulted
in prejudice poses a vexing problem—this problem has been
examined by a number of courts. In Rushen v. Spain, 464
U.S. 114 (1983) the Supreme Court considered the conten-
tion that ex parte communications conducted off the record
could never be harmless error. The Court rejected such a
proposition, but noted, “[t]his is not to say that ex parte
communications between judge and juror are never of
serious concern or that a federal court on habeas may never
overturn a conviction for prejudice resulting from such
communications.” Id. at 119 . In arriving at its conclusion
that the ex parte communication in that case was harmless,
the Supreme Court explained that the judge and juror “did
not discuss any fact in controversy.” Id. at 121. Similarly,
within this Circuit we have noted that a “brief procedural
remark” by the judge to the jury, off the record, will not rise
to the level of constitutional error. Ellsworth, 248 F.3d. at
642 (finding no prejudice when the judge answered jury’s
request to review evidence in the affirmative but disallowed
request to review documents not entered into evidence);
8                                                 No. 02-4257

Verdin v. O’Leary, 972 F.2d 1467, 1482 (7th Cir. 1998)
(finding no prejudice when judge answered jury’s question
regarding use of jury forms, instructing jury that if they
found defendant guilty of murder not to also return the jury
form for manslaughter); United States v. Widgery, 778 F.2d
325, 330 (7th Cir. 1985) (finding no prejudice when judge
answered a hypothetical jury question about deadlock in
deliberations and intoxication on the part of a juror).
  Moore argues that his case is distinguishable from the
above discussions. He believes that communications made
to the jury went to the substance of testimony presented
at trial; specifically at issue is the jury’s question regarding
the time Moore arrived at his home on the night of
the rape—a question that goes to the heart of his alibi
defense. If it is the case that the jury was told there was no
evidence in the record regarding this question, they were
clearly conveyed incorrect substantive information. In fact,
as part of his alibi defense, Moore’s girlfriend testified that
he arrived at their home around 12:20 a.m. (Br. of
Petitioner-Appellant at 9.) Moore’s argument is especially
persuasive given the conditions of the trial, namely, that
the jurors were not allowed to take notes, and the Judge
instructed the jurors that they would not be allowed to ask
any more questions. Given the situation, it takes little
imagination to see why, if Judge Smith (or her Bailiff) did
indicate that there was no evidence in the record that
addressed the subject of the jurors’ questions, that response
could have affected the outcome of the trial.
  On January 15, 2001, the Clinton County Superior Court
conducted post-conviction proceedings investigating the ex
parte communications between the Judge and jury—this
was more than eight years after the conclusion of Moore’s
trial. The court’s factual findings were that “the trial court
judge directed the bailiff to tell the jurors that their ques-
tions could not be answered and that no further questions
No. 02-4257                                                        9

would be allowed.” (R. at App. 23, ¶ 18.)3 The court then
held that, “no juror testified that the failure to answer the
questions affected their deliberation process . . . such error
was harmless.” Id. at ¶ 59. In essence the post-conviction
court found that this case was similar to the others in this
Circuit where the jury received only a “brief procedural
remark.” We find this to be an unreasonable determination
of the facts, warranting the grant of Moore’s writ for a
number of reasons.


3
   The complete, relevant factual findings of that court were as
follows:
      16. During deliberation, the jury, via the bailiff, did send a
    note to the trial judge.
       17. The note contained questions about where Mr. Moore
    lived, the distance between Cicero and Tipton and the time
    Mr. Moore arrived home.
      18. The trial court judge directed the bailiff to tell the jur-
    ors that their questions could not be answered and that no
    further questions or review would be allowed.
      19. The trial court judge did not wait for the prosecutor or
    the counsel for the defendant before responding. She should
    have.
      20. No record was made of this portion of the proceeding. A
    record should have been made.
      21. Several ex-jurors testified at the post conviction relief
    hearing. None of them testified that the court’s failure to
    answer their written question(s) affected their deliberation or
    their voting.
      ....
       59. Even assuming a proper record had been made and
    accepting the previous findings in paragraphs 16 through 21
    as true, no juror testified that the failure to answer the ques-
    tions affected their deliberation process. Despite the trial
    court’s failure to follow established procedures for addressing
    jury questions, such error was harmless.
10                                                  No. 02-4257

  First, the evidence heard at the post-conviction proceed-
ing was too sparse and ambiguous to support such a con-
clusion. At the post-conviction hearings, the court heard
testimony from three jurors and considered two jurors’
affidavits concerning the substance of the communication.
The testimony was halting, often jurors repeated they didn’t
remember what had happened—they could not remember
what questions they had asked, how the answer was
delivered to them, or the time frame in which their commu-
nications took place. There was no consensus as to the
substance of the response they heard, two jurors stated they
were told the answer to their question was not part of the
testimony given at trial,4 two said they were told they had
to recall on their own based on what they heard in the
courtroom.5 Moore’s attorney from the trial testified, but
had no recollection as to what Judge Smith had told the
attorneys she had told the jury. (Supp. R. at 00134.) The
Bailiff testified, but again, claimed no knowledge of the
substance of the communication. (Supp. R. at 00062.) Im-
portantly, Judge Smith herself neither testified or submit-
ted an affidavit (despite the fact that she was present at the
post-conviction hearing). (Supp. R. at 00074-76.) The post-
conviction court received no direct statement from the
person who would be in the best position to recall how the
question was handled.



4
  Juror Judith Donnoe testified (consistent with her affidavit)
that Judge Smith responded, “It was not part of the testimony so
she couldn’t answer it”; and juror Donald Meeks replied in the
affirmative when asked “Did [the Bailiff] tell the jury that their
questions could not be answered because their answers were not
part of the testimony?” (Supp. R. at 00029, 00018, 000245)
5
  Juror Linda Ward testified, “I think we had to recall on our
own”; In her affidavit, juror Darla Jean Stevens stated they were
told, “The jury must make their decision based on what they
heard in the court room.” (Supp. R. 00022, 00246 ).
No. 02-4257                                                       11

  In arriving at its legal conclusion that there was no pre-
judice, the post-conviction court relied on the fact that
“no juror testified that the failure to answer the questions
affected their deliberation process.” Even assuming that
jurors should be relied upon to make such an assertion, it
is ridiculous to base such a determination on the predict-
able lack of evidence so many years after the fact. On its
face, we find the evidence too sparse to support the post-
conviction court’s factual findings.
  The post-conviction court’s finding that there was no
prejudice was especially unreasonable due to the fact that
a presumption of prejudice applies in situations where ex
parte communications were made to the jury by a third
party.6 The Supreme Court has stated, “In a criminal case,


6
   At the post-conviction hearing there was some dispute as to how
Judge Smith’s message was conveyed to the jury. We will briefly
describe the testimony and post-conviction court’s finding. Juror
Linda Ward testified she did not remember whether the Bailiff
conveyed the response verbally or with a note. (Supp. R. at 00023.)
Juror Judith Donnoe stated that the Bailiff answered verbally,
she elaborated: “He took our question out and he I’m assuming it
was on the paper. I didn’t see the paper. It was read to us.” (Supp.
R. at 00030.) Juror Donald Meeks answered in the affirmative
when asked, “[W]hen the Bailiff returned with his answer, he
responded verbally to the jury with an answer?” (Supp. R. at
00118.) When William Spencer, the Bailiff, testified, however,
while not remembering this note in particular, he averred that
“[e]verything’s in writing. I have never delivered anything
verbally either to the Judge or from the Judge to the Jury.” (Supp.
R. 00063.) In the post-conviction court’s finding of fact, Judge
David resolved the matter by finding, “the trial court judge
directed the bailiff to tell the jurors that their questions could not
be answered.” We are satisfied this indicates a verbal—as opposed
to written—response by the Judge and Bailiff.
  Another factor muddying the waters is that Moore and the
government’s attorney agreed to a stipulation that recognized,
                                                      (continued...)
12                                                    No. 02-4257

any private communication, contact, or tampering directly
or indirectly, with a juror during the trial about the matter
pending before the jury is, for obvious reasons, deemed
presumptively prejudicial . . . the burden rests heavily upon
the Government to establish . . . that such contact with the
juror was harmless to the defendant.” Remmer v. United
States, 347 U.S. 227, 229 (1954). Although the Seventh
Circuit has distinguished Remmer from cases where the
contact with the juror was made by the judge,7 instances
involving a judge’s use of the bailiff to verbally communi-
cate with the jury remains under the purview of Remmer.8
Here, the post-conviction court concluded that “the trial
court judge directed the bailiff to tell the jurors that their
questions could not be answered.” However, the court then
failed to apply the appropriate presumption. If, as we noted
above, the evidence heard is not reliable enough to support


(...continued)
“Court’s standard procedure after advising counsel and parties of
question(s) asked . . . has been to write response(s) to questions on
the jury’s note and have their note returned to the jury.” (Supp. R.
at 00244). This seems to have little bearing on what, in fact, did
happen in Judge Smith’s courtroom that day, as the post-convic-
tion court found Judge Smith did not follow proper procedure.
7
  See, e.g., Ellsworth, 248 F.3d at 640-41 (finding no Remmer
presumption where judge responded to jury questions with hand-
written notes); Verdin, 972 F.2d at 1481-82 (not raising Remmer
presumption where judge spoke directly to jury). But see, Widgery,
778 F.2d at 327-31 (majority ignoring Remmer presumption in
case where judge directed bailiff to convey verbal message to jury;
dissent raising Remmer-based argument).
8
  United States ex rel. Tobe v. Bensinger, 492 F.2d 232, 238 (7th
Cir. 1974) (applying Remmer framework when judge communi-
cated to jury via the bailiff); cf., DeGrave v. United States, 820
F.2d 870, 872 (7th Cir. 1987) (applying Remmer framework when
court reporter had ex parte communications with the jury during
deliberations).
No. 02-4257                                                   13

a finding of harmless error on its face, it certainly is not
strong enough to meet the government’s heavy burden
necessary to overcome the presumption of prejudice.
  The post-conviction court’s failure to consider the role of
the Bailiff, however, also raises a second, and more wor-
risome problem: even if the above-described evidence were
sufficient to support the court’s factual findings, those
factual findings never actually addressed what the jury was
told during the ex parte communications—this half of the
inquiry is a necessary component of any determination of
prejudice. Our specific problem here is that, even if we
agree with the post-conviction court’s finding that “the trial
court judge directed the bailiff to tell the jurors that their
questions could not be answered and no further questions
or review would be allowed,” we are still uncertain as to
whether the Bailiff’s phrasing of the response to the jury
changed its substance. Given that Moore’s disagreement
over the content of the Judge’s response hinges fine distinc-
tions that may not have been readily apparent to a
layperson, we have difficulty glossing over such a gap in the
chain of events. Without such a factual finding, we are
uncertain how one could arrive at the legal conclusion that
there was no prejudice.
  Finally, we note that any discrepancy as to what Judge
Smith said to the jury is wholly due to the Judge’s failure
to make a record of the communication as she was obligated
to do, and her failure to simultaneously inform the attor-
neys of the jury’s question.9 When evaluating the effect of


9
  This Court was especially disturbed that, during oral argument,
Appellee’s counsel characterized Judge Smith’s ex parte response
to the jury’s question as her routine courtroom procedure. The
pertinent dialog in full was:
                                                  (continued...)
14                                                 No. 02-4257

this communication in terms of “fundamental fairness” to
the defendant, we are hesitant to punish Moore for the
ambiguities created by the lack of a record.
  Accordingly, we reverse and remand to the district court
to issue Moore’s writ unless the state elects to retry him
within 120 days.


  II. The Brady Claim
  The second issue Moore raises on appeal is that the pros-
ecution failed to turn over exculpatory police reports in
violation of Brady v. Maryland, 373 U.S. 83 (1963). Because
of our disposition of the above issue, we decline to address
this claim.
                                    REVERSED AND REMANDED




(...continued)
     Atty Martin:   “The Judge did conduct an ex parte commu-
                    nication, your honor, there’s no argument
                    about that.”
     Judge Bauer: “So she didn’t follow the routine procedure?”
     Atty Martin:   “She followed what she stated was her routine
                    procedure in her courtroom.”
No. 02-4257                                         15

A true Copy:
      Teste:

                    ________________________________
                    Clerk of the United States Court of
                      Appeals for the Seventh Circuit




               USCA-02-C-0072—5-20-04
