                              In the

 United States Court of Appeals
                For the Seventh Circuit

No. 11-3911

V IRGIL H ALL, III,
                                                 Petitioner-Appellee,
                                  v.

M ICHAEL Z ENK, Superintendent,
                                             Respondent-Appellant.


              Appeal from the United States District Court
       for the Northern District of Indiana, South Bend Division.
               No. 3:09-CV-506—Jon E. DeGuilio, Judge.



       A RGUED JUNE 8, 2012—D ECIDED A UGUST 29, 2012




  Before P OSNER, F LAUM, and W ILLIAMS, Circuit Judges.
  F LAUM , Circuit Judge. In February 2001, Virgil Hall III
was convicted in an Indiana state court of murdering
his stepson. Shortly after his verdict came down, Hall
discovered that one of the jurors in his case had a son
that was a fellow inmate of his. Hall further learned
that before his trial, the juror’s son informed the juror
that Hall was likely innocent, but during the trial, the
juror found out that his son and several co-inmates
2                                             No. 11-3911

changed their mind about Hall, and thought him guilty.
The juror relayed this extraneous information to several
jurors. Upon making these discoveries, Hall filed a
motion to correct error, arguing that he was not afforded
an impartial jury that decided his case strictly upon
the evidence presented. The state court rejected Hall’s
motion, and Hall was further denied at the appellate
level on direct appeal. After seeking collateral relief in
Indiana to no avail, Hall filed a habeas petition in the
Northern District of Indiana, arguing, inter alia, that
the State should have carried the burden of proving that
the extraneous information that reached his jury was
not prejudicial. The district court granted Hall’s habeas
petition based on our precedent of Wisehart v. Davis,
408 F.3d 321 (7th Cir. 2005), and the State now appeals.
For the following reasons, we vacate the ruling of the
district court and remand for further proceedings.


                     I. Background
  In December 1999, Hall married Kelli Fetterhoff and
became the stepfather of Fetterhoff’s kids—Peyton
Fetterhoff (age 3) and Hunter Fetterhoff (age 5). Hall and
Fetterhoff also had a child together in April 2000—Devon
Hall. In May 2000, Fetterhoff went into town to run
errands with Devon, and Hall was left with Hunter and
Peyton. Around 11:00 a.m., Hall telephoned the deputy
chief of the fire department, asking him for assistance
with his stepson Peyton, who, Hall claimed, fell off a
swing. When the deputy chief arrived at Hall’s home,
he realized that Peyton was very severely injured, and
No. 11-3911                                                 3

told Hall to call an ambulance. When Peyton arrived
at the hospital, a doctor discovered that he had several
serious injuries, including a fractured skull and damage
to his torso, and that he was lethargic, unresponsive
to commands, and had deviated eyes. Peyton was there-
fore airlifted to a hospital in Indianapolis. He eventu-
ally died due to swelling in his brain.
  An autopsy on Peyton’s body was conducted, and it
revealed that he suffered at least three separate injuries
to his head, a severe injury to his chest, another to his
abdomen, a sixth to his scrotum, and a laceration to
the ligament that holds his head to his cervical spine.
Hall was eventually charged with murder and neglect
of a dependent resulting in serious bodily injury.
  At trial, Hall changed his story. He suggested that
Peyton was sitting on a workbench while Hall was
fixing his weed eater and that he accidentally knocked
Peyton off the workbench when he yanked on an exten-
sion cord to eliminate a knot. He also claimed that
Peyton hit a dog cage before he fell to the ground. He
explained his prior story about Peyton falling off a
swing by suggesting that he did not want to be viewed
as a bad father for having knocked his stepson off of a
workbench accidentally.
  Several doctors testified at trial, debating the possibility
that Peyton’s injuries could have been caused by the fall
described by Hall and the likelihood that punches or
kicks caused the injuries instead. Hall was eventually
found guilty of both murder and neglect and sentenced
to sixty-five years in prison. After the trial, Hall filed a
4                                             No. 11-3911

motion to correct error due to jury misconduct. Hall
attached an affidavit to his motion suggesting that a
juror was given improper information about Hall’s
trial from several third parties. More specifically, the
affidavit suggested that David Daniels, a juror, had a
son that was incarcerated at the same facility as Hall,
and that Daniels’ son told Daniels at the beginning of
trial that he thought Hall was innocent. Further along
in the trial, Daniels overheard his wife tell another
family member that their son and several other members
of the cell block no longer believed Hall to be innocent.
The affidavit submitted by Hall to the court also sug-
gested that Daniels shared this information with the rest
of the jury. In response to this motion, the State sub-
mitted several affidavits in an attempt to cast doubt
on whether the extraneous information ever actually
reached the jury, but all courts to consider this matter
have determined that the information did reach at
least some jurors. The State has not, at this stage,
given us any reason to doubt those findings.
  After filing his motion to correct error, Hall moved
to depose all members of the jury, but the trial court
denied this motion, and an interlocutory appeal on the
matter to the Court of Appeals of Indiana affirmed this
decision. The Indiana courts’ denials of Hall’s request to
depose the jury were based on two points: (1) under
both Indiana and federal law, jurors cannot testify
about the basis for their decision or whether extraneous
information had an impact on their decision; and (2) there
was already evidence that the extraneous information
actually reached the jury by way of Daniels.
No. 11-3911                                                5

  Hall’s case was therefore sent back to the Indiana trial
court for a hearing to determine whether the extraneous
information caused him prejudice. The court ruled
that extrinsic communications concerning a contested
matter did, in fact, reach the jury, but that Hall was not
prejudiced. On direct appeal, Hall argued that the
State should have had the burden to prove that the ex-
traneous information inserted by Daniels did not prej-
udice Hall. The appellate court expressed its discomfort
with Indiana law, suggesting that the burden should be
on the State to prove that improper, extraneous infor-
mation that reaches the jury did not cause prejudice to
a defendant. The court nonetheless believed itself to
be bound by Indiana Supreme Court precedent, which
stated that the burden is on the defendant to show that
he was actually prejudiced by an intrusion upon the
jury before a new trial can be granted. See Griffin v. State,
754 N.E.2d 899, 901 (Ind. 2001). Because the appellate
court was not permitted to consider any testimony
from jurors regarding their perception of the effect of
the extraneous information, the court believed that it
had a dearth of information upon which to rule, and
found against Hall simply because the burden was on
him to prove prejudice.
   Hall’s next move was to seek post-conviction
relief through Indiana’s court system. He exhausted all
possible post-conviction avenues in Indiana, and then
filed a habeas corpus petition in the federal district court
in the Northern District of Indiana. Hall included
several arguments as to why his conviction should be
thrown out, but only one is pertinent to this appeal.
6                                              No. 11-3911

Hall argued that the Indiana courts contravened clearly
established federal law handed down by the Supreme
Court (as required for a habeas petition under 28 U.S.C.
§ 2254) when they gave Hall the burden of showing
that improper communications with a juror in his case
resulted in actual prejudice. He argued that Remmer
v. United States, 347 U.S. 227 (1954), made it constitu-
tionally necessary to place the burden on the State to
show that improper communications with a juror were
not prejudicial to the defendant, and that our case of
Wisehart v. Davis, 408 F.3d 321 (7th Cir. 2005), dubbed
Remmer’s holding to be “clearly established.” The dis-
trict court found that it was hard to justify a finding
that Remmer’s holding was still the clearly established
law in this area, given the language of subsequent
Supreme Court cases as well as a circuit split on the
continued viability of Remmer, but that Wisehart none-
theless required the district court to deem the holding
clearly established. Thus, according to the district court,
the Indiana courts ruled contrary to clearly established
federal constitutional law. Further, the district court
found that the error was not harmless, and thus Hall’s
habeas petition was granted. The court also held that
even though Remmer only requires a hearing to deter-
mine prejudice, during which the State carries the
burden of proof, the Court of Appeals of Indiana
observed that the State would not have been able to carry
its burden if it had needed to do so. The district court
considered this finding reasonable, and thus deferred
to the state court in granting Hall either his release or a
retrial. The State now appeals, asking us to find that the
No. 11-3911                                                  7

Indiana courts did not contravene clearly established
federal law.


                       II. Discussion
  In reviewing rulings on a petition for habeas relief, we
are restricted to the question of whether a convic-
tion violated “the Constitution, laws, or treaties of the
United States.” Estelle v. McGuire, 502 U.S. 62, 68 (1991); see
also 28 U.S.C. § 2254(a). We review all questions of law
de novo and all factual determinations for clear error.
Atkins v. Zenk, 667 F.3d 939, 943 (7th Cir. 2012). Our
review is guided, however, by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), since
Hall’s trial took place after AEDPA was enacted. Despite
an argument to the contrary in the district court, Hall
concedes that the Indiana courts ruled on the merits on
his current constitutional challenge to his conviction,
and thus this habeas case falls under 28 U.S.C. § 2254(d).
Section 2254(d) states:
    An application for a writ of habeas corpus on behalf
    of a person in custody pursuant to the judgment of a
    State court shall not be granted with respect to any
    claim that was adjudicated on the merits in State
    court proceedings unless the adjudication of the
    claim—
        (1) resulted in a decision that was contrary to, or
        involved an unreasonable application of, clearly
        established Federal law, as determined by the
        Supreme Court of the United States; or
8                                               No. 11-3911

        (2) resulted in a decision that was based on an
        unreasonable determination of the facts in light
        of the evidence presented in the State court pro-
        ceeding.
A decision is contrary to clearly established federal law
if it either applies a rule that contradicts a prior
Supreme Court case, or if it reaches a different result
than the Supreme Court has reached on a materially
indistinguishable set of facts. Williams v. Taylor, 529 U.S.
362, 405 (2000). In considering whether a state court’s
decision involves an unreasonable application of clearly
established law, we look not to whether the state court
ruled incorrectly, but rather whether the application of
law is unreasonable. Rastafari v. Anderson, 278 F.3d 673,
688 (7th Cir. 2002). The application of a law is reasonable
if it is “at least minimally consistent with the facts and
circumstances of the case.” Schaff v. Snyder, 190 F.3d
513, 523 (7th Cir. 1999) (quoting Hennon v. Cooper, 109
F.3d 330, 335 (7th Cir. 1997)). Because Hall’s challenge is
a constitutional one, he must also convince us that the
alleged error “had substantial and injurious effect or
influence in determining the jury’s verdict” in order to
have his habeas petition granted. Jones v. Basinger, 635
F.3d 1030, 1052 (7th Cir. 2011) (quoting Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993)).
  Hall believes that he has cleared these hurdles. He
asserts that under the Sixth and Fourteenth Amend-
ments to the Constitution, he had a right to an impartial
jury at his murder trial, and that his right was violated
when extraneous third-party communications reached
No. 11-3911                                             9

the jury, resulting in the possibility that the jury
considered more than just the evidence presented at trial.
Hall further argues that under Remmer, a state is con-
stitutionally required to hold a hearing examining the
prejudicial effect of such third-party communications,
and that a presumption of prejudice must attach to
this type of extraneous information (hereinafter referred
to as the “Remmer presumption”). Hall’s state trial
court did provide him with a hearing examining the
prejudicial effect of the information conveyed to his jury
by Juror Daniels, but he argues that the court’s failure
to presume prejudice during that hearing was none-
theless a violation of his constitutional rights. He
maintains that we have already impliedly held the
Remmer presumption to be clearly established constitu-
tional law in Wisehart, and that thus he is entitled to a
grant of his habeas petition.
  The State, conversely, does not believe that the
Remmer presumption is clearly established federal law
applicable to the states. It contends that Supreme
Court cases subsequent to Remmer have abrogated the
presumption, and that even if we disagree on that point,
a circuit split on the continuing vitality of the Remmer
presumption illustrates the fact that it is not clearly
established law. In the alternative, the State argues that
the Remmer presumption does not help Hall at this proce-
dural posture. The State explains that a habeas peti-
tioner must show that he was likely prejudiced by a
state’s constitutional error to succeed on a habeas
petition, which is essentially the showing that the state
trial court required of Hall when it did not presume
10                                              No. 11-3911

prejudice in his favor. Thus, according to the State, Hall is
in the same position here that he was when the state
court denied his claim of presumed prejudice, and his
petition must be denied.
  As the parties’ arguments illustrate, the questions we
must answer are three-fold: (1) whether the Remmer
presumption is clearly established federal law applicable
to the states; (2) if it is, whether the Indiana courts acted
contrary to this clearly established rule, or applied it
unreasonably, in placing the burden to show prejudice
from extraneous communications on Hall; and (3) whether
this error had a substantial and injurious effect on Hall.
We begin, therefore, by seeking to determine whether
the Remmer presumption is clearly established federal
law applicable to the states. In considering whether
clearly established federal law exists with respect to a
particular issue, we may only consider the holdings of
the U.S. Supreme Court; neither the case law of the
circuits nor dicta found in Supreme Court cases can
establish federal law that binds the states for the
purposes of habeas review. Williams, 529 U.S. at 412. The
fact that a circuit split exists on an issue may be indica-
tive of a lack of clarity in the Supreme Court’s jurispru-
dence, cf. Forman v. Richmond Police Dep’t, 104 F.3d 950,
960 (7th Cir. 1997), but a split is not dispositive of the
question, see Morgan v. Morgensen, 465 F.3d 1041, 1046 n.2
(9th Cir. 2006) (“The fact that there was a potential
circuit split on this issue does not preclude our holding
that the law was clearly established . . . .”); Williams v.
Bitner, 455 F.3d 186, 193 n.8 (3d Cir. 2006) (“Even if our
sister circuits had in fact split on the issue, we would not
No. 11-3911                                             11

necessarily be prevented from finding that the right was
clearly established.”). But see Evenstad v. Carlson, 470
F.3d 777, 783 (8th Cir. 2006) (“When the federal circuits
disagree as to a point of law, the law cannot be considered
‘clearly established’ . . . .”).
  There is no doubt that Remmer itself established a
presumption of prejudice applicable when third-party
communications concerning a matter at issue in a trial
intrude upon a jury. See Remmer, 347 U.S. at 229. In
Remmer, a criminal case involving the willful evasion of
taxes, a juror informed the judge post-verdict that an
unnamed third party suggested that the juror could
profit by ruling in favor of the defendant. Id. at 228.
The judge asked the FBI to investigate, and they deter-
mined that the seeming bribe was made in jest.
Id. This investigation was conducted ex parte, and the
defendant was not aware of its existence until after
the trial had ended, at which point he moved for a
new trial and lost. Id at 228-29. The defendant appealed
to the Supreme Court, which held that “[i]n a criminal
case, any private communication, contact, or tampering
directly or indirectly, with a juror during a trial about
the matter pending before the jury is, for obvious
reasons, deemed presumptively prejudicial.” Id. at 229.
The court further ruled that in these situations, a
hearing is necessary, in which the State must carry
the heavy burden of showing that the contact with a
juror was harmless. Id. The Court remanded to the
district court, but the case eventually made its way back
up to the Supreme Court, at which time the Supreme
Court clarified that “[i]t was the paucity of information
12                                              No. 11-3911

relating to the entire situation coupled with the presump-
tion which attaches to the kind of facts alleged by peti-
tioner which, in our view, made manifest the need for
a full hearing.” Remmer v. United States, 350 U.S. 377, 379-
80 (1956).
  We have no doubt that if Remmer still applies with full
force today, Indiana acted contrary to its clear holding.1
The State, however, cites to two more recent Supreme
Court cases that, according to the State’s readings, under-
cut the presumption that was established in Remmer.
The first is Smith v. Phillips, where a juror applied for a
job in the office of the prosecutor trying the very case
that the juror was hearing. 455 U.S. 212 (1982). In Phillips,
the Court confirmed that Remmer hearings are required
to alleviate concerns of juror partiality, id. at 215
(“[T]he remedy for allegations of juror partiality is a
hearing . . . .”), and that this requirement is rooted in the
federal Constitution, id. at 217 (“Due process means a
jury capable and willing to decide the case solely on
the evidence before it, and a trial judge ever watchful
to prevent prejudicial occurrences and to determine the
effect of such occurrences . . . . Such determinations
may properly be made at a hearing like that ordered
in Remmer . . . .”). According to the State, however, the
Court also cast doubt on whether and when the State
has the burden to show harmlessness in a Remmer



1
  This assumes, of course, that the Remmer presumption is a
constitutional necessity, and thus is a rule that must be
followed by the states—a matter which is discussed below.
No. 11-3911                                              13

hearing, stating, “This 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.” Id. at 215 (emphases added). The focus of Phillips,
however, was the defendant’s mere right to a hearing,
as opposed to an automatic new trial, when jury bias
is suspected. See id. at 215-18. The Court even mentioned,
not disapprovingly, its former characterization of an
attempted bribe as “presumptively prejudicial,” thereby
supporting the notion that a presumption of prejudice
still existed in at least some, if not all, situations
involving a potential lack of jury impartiality. Id. at 215-
16. This implication is bolstered by the dissent’s
offhand, seemingly uncontroversial comment that the
Court, in the past, had “strongly presumed that contact
with a juror initiated by a third party is prejudicial.” Id.
at 228 (Marshall, J., dissenting). Thus, while it may be
cogently argued that Phillips narrowed the Remmer pre-
sumption by suggesting that it did not apply to the cir-
cumstances presented in Phillips, it did not eliminate
the presumption altogether.
  This interpretation of Phillips finds support in the
reasoning of the more recent case of United States v.
Olano, 507 U.S. 725 (1993). In Olano, alternate jurors were
permitted to sit in on the jury’s deliberations in contra-
vention of the Rules of Criminal Procedure. Id. at 728-
29. The Court analogized this factual scenario to
Remmer, in that both involved “outside intrusions upon
the jury for prejudicial impact.” Id. at 738. In keeping
with Remmer and Phillips, the Court observed that intru-
sions upon the jury can only result in the overturning of
14                                                No. 11-3911

a verdict if there was prejudicial impact. Id. On the topic
of presumptions,2 the Court stated: “There may be
cases where an intrusion should be presumed prejudicial,
but a presumption of prejudice as opposed to a specific
analysis does not change the ultimate inquiry: Did the
intrusion affect the jury’s deliberations and thereby
its verdict?” Id. at 739. In reaching the conclusion that
a presumption of prejudice was not appropriate in
Olano, the Court engaged in a fact-based analysis, and
reasoned that the error was not “inherently prejudicial,”
especially since the lower court gave the alternate jurors
an instruction not to participate in the deliberations. Id.
at 740-41.




2
  In Olano, the Court’s discussion of presumptions was situ-
ated in the context of Federal Rule of Criminal Procedure
52(b) analysis, 507 U.S. at 740, which implies the possibility
that the presumption at issue in Olano was unrelated to the
constitutional dictates of Remmer. In an earlier portion of the
Olano opinion, however, the Court relied on constitutional
intrusion cases for their reasoning (including Remmer), and
intimated that the prejudice analysis in those constitutional
contexts was analogous to the analysis employed under
Rule 52(b). Id. at 739. Immediately following a discussion that
referenced the prejudice analysis that took place in Remmer,
the Court clarified that “the issue here is whether the alter-
nates’ presence sufficed to establish remedial authority under
Rule 52(b), not whether it violated the Sixth Amendment or Due
Process Clause, but we see no reason to depart form the normal
interpretation of the phrase ‘affecting substantial rights,’ ”
which includes prejudice analysis. Id.
No. 11-3911                                               15

  Taking Phillips and Olano together, two conclusions
seem inescapable: (1) not all suggestions of potential
intrusion upon a jury deserve a presumption of prejudice,
and thus the government does not always carry the
burden of proving prejudice; but (2) there are at
least some instances of intrusion upon a jury which call
for a presumption of prejudice, contrary to the State’s
contention. See Olano, 507 U.S. at 739 (“There may
be cases where an intrusion should be presumed prejudi-
cial . . . .”). Our post-Olano case law, both in the habeas
and direct-review contexts, is in line with these conclu-
sions. We have interpreted Supreme Court case law
as establishing that the Remmer presumption is, in fact,
vital, though its use should not be automatic regardless
of the level of prejudicial impact that is likely to flow
from a given intrusion. See United States v. Gallardo, 497
F.3d 727, 736 (7th Cir. 2007) (“The facts of this case do
not rise to the level of the misconduct in Remmer, and
no presumption of prejudice is warranted in this case.”);
United States v. Warner, 498 F.3d 666, 680 (7th Cir. 2007)
(recognizing a Remmer presumption, but noting that
“[s]ometimes the circumstances are such that the
Remmer presumption does not even apply”). What is
more, we have implied, though not stated directly, that
the Remmer presumption is clearly established federal
law under AEDPA, meaning state courts must apply
the Remmer presumption to avoid running afoul of the
federal Constitution. See Moore v. Knight, 368 F.3d 936, 942-
43 (7th Cir. 2004) (stating in a post-AEDPA habeas
case reviewing a state court conviction, “The post-convic-
tion court’s finding that there was no prejudice was
16                                             No. 11-3911

especially unreasonable due to the fact that a presump-
tion of prejudice applies in situations where ex parte
communications were made to the jury by a third party”);
see also Wisehart, 408 F.3d at 326-28 (noting in a post-
AEDPA habeas case that the State must carry the burden
of showing harmlessness in a Remmer hearing);
Whitehead v. Cowan, 263 F.3d 708 (7th Cir. 2001) (holding
in a post-AEDPA habeas case that the Remmer presump-
tion did not apply due to the innocuous nature of an
intrusion upon a jury, implying that the Remmer pre-
sumption could apply in the habeas context).
  In Wisehart v. Davis, for instance, we considered a
habeas petition from a defendant that had been con-
victed of murder, robbery, burglary, and theft. 408 F.3d
at 323. Ten years after the conclusion of that trial, the
defendant obtained an affidavit from one of the jurors
stating that a third party told the juror that the trial
was delayed a day so the defendant could take a
polygraph test. Id. at 326. The juror never discovered
the results of that test. Id. Despite this extraneous com-
munication with the juror, the defendant did not receive
a hearing to determine whether the juror—and thus
the jury—was impartial. Id. We determined that under
Remmer, a hearing was due to the defendant. Id.
We acknowledged that not every private communica-
tion with a juror about a pending trial gives rise to a
Remmer hearing, since that rule, taken to its extreme,
would produce absurd results. Id. We did determine,
however, that Remmer requires further inquiry if an
“extraneous communication to [a] juror [is] of a character
that creates a reasonable suspicion that further inquiry is
No. 11-3911                                            17

necessary to determine whether the defendant was de-
prived of his right to an impartial jury,” and “[h]ow
much inquiry is necessary . . . depends on how likely
was the extraneous communication to contaminate the
jury’s deliberations.” Id. at 326. This alone is unrelated
to whether the presumption is clearly established
federal law, we also noted that “it was the state’s
burden, given the juror’s affidavit, to present evidence
that the jury’s deliberations had not been poisoned by
the reference to Wisehart’s having been given a
polygraph test.” Id. at 327-28 (emphasis added). Though
we did not specifically state that this rule is “clearly
established,” Wisehart was a post-AEDPA habeas case,
and thus the Remmer presumption must have been
clearly established in order to be relevant under AEDPA.
See 28 U.S.C. § 2254(d).
   Thus, we have already decided that the Remmer pre-
sumption is clearly established federal law as defined
by AEDPA. The State asks us to reconsider our position.
It argues that there is a significant circuit split on
whether and when the Remmer presumption ought to
obtain, and thus cannot be considered clearly estab-
lished law, nor serve to overturn Hall’s conviction.
The State cites two circuits that held, either explicitly
or implicitly, that the Remmer presumption no longer
exists. See United States v. Rowe, 906 F.2d 654, 656
(11th Cir. 1990) (“Prejudice is not presumed. The de-
fendant has the burden of demonstrating prejudice by a
preponderance of credible evidence.”); United States v.
Pennell, 737 F.2d 521, 532 (6th Cir. 1984) (“In light of
Phillips, the burden of proof rests upon a defendant to
18                                              No. 11-3911

demonstrate that unauthorized communications with
jurors resulted in actual juror partiality. Prejudice is not
to be presumed.”). These cases, however, were decided
before Olano was issued by the Supreme Court. To
the extent that they are still good law in their respec-
tive circuits, we respectfully conclude that they con-
stitute an unreasonable interpretation of Supreme Court
law, given the clear language in Olano that explains, “There
may be cases where an intrusion should be presumed
prejudicial.” 507 U.S. at 739.
  The State also cites the Tenth Circuit case of Crease
v. McKune, which held that the Remmer presumption is
a rule of federal criminal procedure, not constitutional
law, and thus is not applicable to the states. 189 F.3d
1188, 1193 (10th Cir. 1999). As is clear from the discus-
sion above, our case law has assumed that the Remmer
presumption, like Remmer hearings generally, is a
federal constitutional necessity in the proper factual
scenarios. See Wisehart, 408 F.3d at 326-28; Moore, 368
F.3d at 942-43; Whitehead, 263 F.3d 708. Accord Fullwood
v. Lee, 290 F.3d 663, 678 (4th Cir. 2002) (stating, “We
have applied Remmer in the federal habeas context,”
and noting that Remmer puts the burden on the State
to show prejudice when an improper communication
with a juror has taken place). The State has not given
us a reason to revisit our position other than the fact
that the Tenth Circuit disagrees, and the Tenth Circuit’s
reasoning does not convince us either. In Crease, the
Tenth Circuit’s sole justification for finding the Remmer
presumption to be a procedural rule is the fact that
“the mere occurrence of an ex parte conversation
No. 11-3911                                                19

between a trial judge and a juror does not constitute a
deprivation of any constitutional right.” 189 F.3d at 1193
(quoting United States v. Gagnon, 470 U.S. 522, 526
(1983)). We do not disagree, but we find this point to
be unrelated to whether the Remmer presumption is a
constitutional rule. The fact that an ex parte conversa-
tion with a juror does not, by itself, establish a constitu-
tional violation only proves that a Remmer presumption,
if it exists, is not irrebuttable; it is unrelated to the
question of what process is constitutionally due when
such an occurrence transpires. Because neither the
Tenth Circuit nor the State has given us any reason to
depart from our position in Wisehart, Whitehead, and
Moore, as well as the fact that Remmer hearings them-
selves undoubtedly serve a constitutional function,
Phillips, 455 U.S. at 217 (“Due process means a
jury . . . decid[ing] the case solely on the evidence before
it, and a trial judge ever watchful to prevent prejudicial
occurrences . . . . Such determinations may properly be
made at a hearing like that ordered in Remmer . . . .”), we
will continue to follow our established circuit law.
   The remainder of inconsistent case law cited by the
State relates not to whether the Remmer presumption
exists, but when the Remmer presumption ought to be
employed. The State is correct that there has been
much debate on this issue. The Fourth Circuit still
firmly holds that the Remmer presumption is alive and
well, provided that “more than innocuous interven-
tions” have taken place. United States v. Cheek, 94 F.3d
136, 141 (4th Cir. 1996) (quoting Haley v. Blue Ridge Transfer
Co., 802 F.2d 1532, 1537 n.9 (4th Cir. 1986)). Several other
20                                              No. 11-3911

circuits, such as the D.C. Circuit, have ruled that Phillips
and Olano cut back on Remmer’s presumption, but that a
presumption can still exist, depending on “whether any
particular intrusion showed enough of a ‘likelihood of
prejudice’ to justify assigning the government a burden
of proving harmlessness.” United States v. Williams-Davis,
90 F.3d 490, 497 (D.C. Cir. 1996); see also United States
v. Sylvester, 143 F.3d 923, 934 (5th Cir. 1998). Another
has suggested a more firm line: “[T]he presumption
is applicable only where there is an egregious tampering
or third party communication which directly injects
itself into the jury process.” United States v. Boylan, 898
F.2d 230, 261 (1st Cir. 1990). The Ninth Circuit has pro-
vided the narrowest construction, asserting that the
Remmer presumption is only applicable to jury tampering
cases. United States v. Dutkel, 192 F.3d 893, 895 (9th
Cir. 1999).
  Taking these cases together, as well as the actual lan-
guage used by the Supreme Court, what seems to be
“clearly established” is that federal constitutional law
maintains a presumption of prejudice in at least some
intrusion cases. The standard applied by the Court of
Appeals of Indiana requires that a defendant prove that
he was probably harmed by an extraneous communica-
tion had with a juror, which leaves no room for the poten-
tial for a presumption, in contravention of Remmer
and Olano. See Hall v. State, 796 N.E.2d 388, 396 (Ind. App.
2003) (“[B]ecause mandatory precedent clearly places
the burden of proving prejudice on the defendant, we
require Hall to prove he was prejudiced by the miscon-
duct.”). Thus, if the intrusion upon Hall’s jury would
No. 11-3911                                              21

warrant a presumption of prejudice under any rea-
sonable reading of Remmer and its progeny, the Court of
Appeals of Indiana applied a rule that is contrary to
this clearly established federal law, despite the fact that
there is still some ambiguity regarding when the
Remmer presumption applies.
   To start, we believe that the Ninth Circuit’s narrow
interpretation of the Remmer presumption is highly ques-
tionable in light of Supreme Court precedent. As noted
above, and as we have recognized in the past, the
Ninth Circuit has limited the Remmer presumption to cases
of jury tampering. See Whitehead, 263 F.3d at 724 (citing
Dutkel, 192 F.3d at 895). In our opinion, whether this is
a reasonable reading of Remmer and its progeny depends
upon how “jury tampering” is defined. If “jury tampering”
can be understood to include extraneous contacts
with jurors that are not made with the intention of af-
fecting the jury’s verdict, then this limitation placed
upon Remmer may be reasonable. If, however, “jury
tampering” is confined to considered attempts
at altering the jury’s deliberations or verdict, this inter-
pretation of the Remmer presumption is too narrow to
account for the language in both Olano and Remmer
itself. Remmer established a presumption of prejudice
for “any private communication, contact, or tampering
directly or indirectly, with a juror during a trial about
the matter pending.” 347 U.S. at 229 (emphasis added).
The disjunctive nature of that statement clearly indicates
that the procedural requirements established by Remmer
are triggered by more than just tampering cases. One
could reasonably hold—as many circuits have—that
22                                                No. 11-3911

Phillips and Olano have narrowed Remmer, thus creating
the possibility that the Remmer presumption no longer
applies to non-tampering cases. Olano, however, was not
a tampering case—it involved alternate jurors observing
the regular jury’s deliberations. If the Remmer presump-
tion had been narrowed to apply only to tampering
cases, the Court could have disposed of the presumption
argument in Olano in a single sentence by noting that
fact; instead, the Court engaged in a factual analysis
to illustrate why the presence of alternate jurors at delib-
erations is not “inherently prejudicial.” Olano, 507 U.S. at
740-41. Therefore, the Remmer presumption cannot rea-
sonably be understood to apply only to intentional tamper-
ing cases in light of the Supreme Court’s precedent.
  Excluding the Ninth Circuit’s potentially problematic
interpretation of the Remmer presumption, this case falls
close enough to the facts of Remmer to easily earn a pre-
sumption of prejudice under the remaining Remmer-
presumption tests advanced by the circuits. For one, this
case is closer to Remmer than it is to Phillips and Olano.
In Phillips, the potential bias of a juror was wholly unre-
lated to the Phillips trial itself, but rather involved a
relationship between a juror and the prosecutor’s office.
Phillips, 455 U.S. at 212. The potential intrusion in Olano
was even more innocuous. The possibility of prejudice
could have only arisen from the mere presence of
alternate jurors during deliberations, rather than
any verbal communication, since there was “no specific
showing that the alternate jurors in [the] case either
participated in the jury’s deliberations or ‘chilled’ delibera-
No. 11-3911                                               23

tions by the regular jurors.” Olano, 507 U.S. at 739. This
case, conversely, involved a third-party communication
with a juror about the ultimate question of the
pending case to be decided by the jury. Like the phony
bribe offer and subsequent FBI investigation in Remmer,
the information conveyed to Hall’s jury could have
had a great impact on an average juror’s deliberation.
The Court of Appeals of Indiana recognized as much
when it stated:
    In the case at bar, the extraneous information con-
    cerned Hall’s fellow inmates’ opinions of his
    innocence and guilt. The fact that the inmates lived
    with Hall and once believed he was innocent, but
    changed their belief to guilt, renders the impression
    that the inmates had a special insight into Hall’s
    guilt—seemingly gained as a result of their frequent
    contact with Hall and ability to see Hall when he
    had not composed himself for a jury. As such, if the
    jury allowed themselves to consider this informa-
    tion, there can be little doubt that the information
    had a prejudicial impact on the verdict obtained.
Hall v. State, 796 N.E.2d at 398. Even under a
narrow reading of Remmer that permits a presumption
of prejudice only where there is a likelihood of prejudice,
Williams-Davis, 90 F.3d at 497, or where “there is an
egregious tampering or third party communication
which directly injects itself into the jury process,” Boylan,
898 F.2d at 261, a presumption was due to Hall in his post-
verdict hearing, and the state court decision to the con-
trary was an abuse of discretion. Thus, we are confident
24                                              No. 11-3911

that despite some ambiguity regarding when the
Remmer presumption should apply, all reasonable inter-
pretations of Remmer and its progeny would lead to a
presumption of prejudice in favor of Hall in his post-
verdict hearing. Thus, the trial court that oversaw
Hall’s conviction acted contrary to clearly established
federal law under AEDPA.
  As it turns out, however, Hall’s initial victory is more
theoretical than practical, since he still must establish
that he was prejudiced by the state courts’ constitutional
error. Due to the concerns of federalism, finality, and
comity that attend habeas proceedings, a habeas
petitioner must show that a constitutional error was not
harmless to succeed on his petition. See Basinger, 635 F.3d
at 1052. More specifically, he must show that the constitu-
tional error had a “substantial and injurious effect” on
the outcome of his case. Rodriguez v. Montgomery, 594
F.3d 548, 551 (7th Cir. 2010). This is, in effect, an “actual
prejudice” test. Basinger, 635 F.3d at 1052. The Remmer
presumption is meant to protect against the potential
Sixth Amendment harms of extraneous information
reaching the jury, but a state court’s failure to apply the
presumption only results in actual prejudice if the jury’s
verdict was tainted by such information. Accord Oliver v.
Quarterman, 541 F.3d 329, 339-41 (5th Cir. 2008) (in a habeas
case, finding that “Remmer, Turner, and Parker clearly
establish that it is presumptively prejudicial for a jury to
consult an external influence,” but that “habeas peti-
tioners are not entitled to relief based on a constitutional
error unless the error ‘had [a] substantial and injurious
effect or influence in determining the jury’s verdict’ ”).
No. 11-3911                                               25

Thus, Hall must now prove what he allegedly failed to
prove to the Indiana courts: that he was likely prejudiced
by the intrusion upon his jury. It is enough, however, that
we have a “grave doubt as to the harmlessness of [a
constitutional error]” to grant relief. Basinger, 635 F.3d at
1052 (quoting O’Neal v. McAninch, 513 U.S. 432, 445 (1995)).
  The Indiana courts claim to have made a factual
finding that Hall could not show prejudice due to the
information that Juror Daniels shared with the rest of
Hall’s jury. In collateral review, we must “respect the
factual findings of state courts.” Green v. Peters, 36 F.3d
602, 611 (7th Cir. 1994) (citing Sumner v. Mata, 455 U.S.
591, 598 (1982)). In fact, “[a] state court’s factual
findings are ‘presumed to be correct’ in a federal
habeas corpus proceeding unless they are rebutted by
‘clear and convincing evidence.’ ” Carter v. Thompson, ___
F.3d ___, 2012 WL 3290152, *1 (7th Cir. 2012) (citing
28 U.S.C. § 2254(e)(1)). Upon review of the reasoning
behind the state court’s “factual determination”
regarding prejudice, however, it is clear that the state
court did not actually make a factual finding, but rather
decided not to decide. As we mentioned previously, the
Court of Appeals of Indiana believed that “if the jury
allowed themselves to consider [the information about
Hall’s fellow inmates], there can be little doubt that the
information had a prejudicial impact on the verdict ob-
tained.” Hall v. State, 796 N.E.2d at 398. But Indiana
courts, as with federal courts under Federal Rule of
Evidence 606(b), are “precluded from considering any
information . . . indicating how . . . extrinsic information
affected the jury’s decision -making process.” Id. at 397.
26                                              No. 11-3911

The state court determined that there was a lack of proof
regarding whether the jurors actually took the highly
prejudicial information into consideration when
deciding upon their verdict, so no prejudice could be
shown. According to the court, “the placement of the
burden of proof is everything,” and “Hall, as the party
with the burden of proof under current Indiana law,
necessarily loses.” Id. at 398. Under this standard of
proof, prejudice could never be shown in a scenario
where extraneous information has reached a jury, re-
gardless of the level of prejudicial risk, since the court
essentially required that Hall present evidence that is
literally forbidden under Indiana’s—and the federal
courts’—procedural rules. What the state courts
should have done, at least to satisfy their federal con-
stitutional obligations, is:
     to limit the questions asked the jurors to whether
     the communication was made and what it con-
     tained, and then, having determined that communica-
     tion took place and what exactly it said, to deter-
     mine—without asking the jurors anything further
     and emphatically without asking them what role
     the communication played in their thoughts or dis-
     cussion—whether there is a reasonable possibility
     that the communication altered their verdict.
Haugh v. Jones & Laughlin Steel Corp., 949 F.2d 914, 917 (7th
Cir. 1991). Because the state court judge did not make
any determination of this nature, we hold that the
court abdicated its duty to make a factual determina-
tion regarding the likelihood of prejudice in Hall’s case.
No. 11-3911                                              27

In granting Hall’s habeas petition, the district court did
not require Hall to show prejudice. Instead, it placed
the burden of proving harmlessness on the State, and
agreed with the Court of Appeals of Indiana that
neither party could prove harmfulness or harmlessness, so
the party with the burden must lose. For the reasons
already outlined above, we disagree with both of these
decisions. First, it is well established that a habeas peti-
tioner must prove prejudice in order to have his petition
granted, see Brecht, 507 U.S. at 622; Basinger, 635 F.3d at
1052, though we recognize that this point may be
counterintuitive given the constitutional error at issue,
which is the state courts’ failure to place the harm-
lessness burden on the government in a post-conviction
hearing. As already noted, however, this is a con-
sequence of the deference we afford state courts in col-
lateral review. Second, though it may be difficult to
prove or disprove prejudice without the benefit of juror
testimony regarding the effect of extraneous informa-
tion on deliberations, it is an abdication of a court’s duty
to automatically consider the burden of proof to be
dispositive in situations of this nature. Thus, what is
left for us to decide—if we can—is whether Hall has given
us “grave doubt as to the harmlessness” of the Indiana
courts’ constitutional error. Basinger, 635 F.3d at 1052
(quoting O’Neal, 513 U.S. at 445).
  On the limited record that we have before us,
it is clear that Hall has provided enough of a factual
foundation, absent any countervailing evidence, to
suggest that he was prejudiced by the information
acquired and shared by Juror Daniels. Through affidavits,
28                                              No. 11-3911

Hall proved that highly prejudicial information about
the ultimate question in his criminal case reached
several members of his jury. This, with no further infor-
mation about the case, gives us “grave doubt as to
the harmlessness” of such an intrusion upon Hall’s jury.
See Basinger, 635 F.3d at 1052 (quoting O’Neal, 513 U.S.
at 445). But in deciding whether extraneous informa-
tion that reached the jury was likely to have prejudiced
a defendant, there is more to consider than just the
nature of the extraneous information; a court may also
consider, among other things, “the power of [any] curative
instructions,” Warner, 498 F.3d at 681, and the strength
of the legitimate evidence presented by the State, cf.
Haugh, 949 F.2d at 919 (considering the fact that the de-
fendant’s trial was “very close” in deciding whether
there was a reasonable probability of prejudice). See also
McNair v. Campbell, 416 F.3d 1291, 1307-08 (11th Cir.
2005) (“[T]he factors to be considered include the heavy
burden on the State, the nature of the extrinsic evidence,
how the evidence reached the jury, and the strength of
the State’s case.”). If, hypothetically, the legitimate evi-
dence presented by the State in a habeas petitioner’s
case was overwhelming, and the trial judge in such a
case gave a stern pre-verdict warning to the jurors to
only consider facts that were presented during trial,
concerns about the prejudicial impact of extraneous
information might be lessened.
  As for Hall’s trial, this is information that we do not
have and, due to our appellate status, cannot obtain.
Thus, while we agree with the district court that the
Court of Appeals of Indiana acted contrary to clearly
No. 11-3911                                            29

established federal law, we are uncertain as to whether
he was actually prejudiced by the state courts’ constitu-
tional error, given the dearth of information before us.
It may be a significant challenge for the State to
convince the district court that such highly prejudicial
information might not have had an impact on the jury’s
verdict, but this is a matter better addressed by a trial
court. We therefore must vacate the district court’s grant
of Hall’s habeas petition and remand to the district
court. It is there that the State will have an opportunity
to show, despite the strong evidence of prejudice
already presented by Hall, that countervailing facts
would have alleviated concerns of a prejudiced jury.


                    III. Conclusion
  For the reasons stated, we R EVERSE the judgement of
the district court and R EMAND for a hearing to deter-
mine whether Hall was prejudiced by extraneous infor-
mation that reached his jury.




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