                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  January 5, 2011
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                    Clerk of Court
                                TENTH CIRCUIT


 EMILIO TENIENTE,

              Petitioner-Appellant,

 v.
                                                        No. 10-8033
 WYOMING ATTORNEY GENERAL;                     (D.C. No. 2:09-CV-00010-ABJ)
 WYOMING DEPARTMENT OF                                    (D. Wyo.)
 CORRECTIONS STATE
 PENITENTIARY WARDEN,

              Respondents-Appellees.


          ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before MURPHY, GORSUCH, and HOLMES, Circuit Judges.


      Emilio Teniente, a Wyoming state prisoner, seeks a certificate of

appealability (“COA”) to challenge the district court’s denial of his petition for a

writ of habeas corpus pursuant to 28 U.S.C. § 2254. Exercising jurisdiction under



      *
              This order is not binding precedent, except under the doctrines of law
of the case, res judicata, and collateral estoppel. It may be cited, however, for its
persuasive value consistent with Federal Rule of Appellate Procedure 32.1 and
Tenth Circuit Rule 32.1.

      After examining the briefs and the appellate record, this three-judge panel
determined unanimously that oral argument would not be of material assistance in
the determination of this matter. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G).
The case is therefore ordered submitted without oral argument.
28 U.S.C. §§ 1291 and 2253(a), we deny Mr. Teniente’s application for a COA

and dismiss his appeal.

                                 BACKGROUND

      In 2005, a Wyoming jury convicted Mr. Teniente of first-degree murder and

conspiracy to commit murder. See Teniente v. State, 169 P.3d 512, 517 (Wyo.

2007). During the trial, the prosecutor elicited testimony from a witness

regarding his shared gang affiliation with Mr. Teniente and certain characteristics

of their gang. In 2007, the Wyoming Supreme Court affirmed Mr. Teniente’s

conviction and sentence in all respects. Id. at 538. The court only did so,

however, after initially remanding the case to the trial court to develop the record

concerning a jury note that surfaced during the pendency of the appeal. As

discussed further below, that jury note was prompted by a contact between Mr.

Teniente’s girlfriend and a juror. The Wyoming Supreme Court assessed the

circumstances surrounding the girlfriend’s contact with the juror and the trial

court’s handling of the note, and discerned no grounds in the trial court’s actions

for reversing Mr. Teniente’s conviction. Mr. Teniente filed a petition for a writ

of habeas corpus pursuant to 28 U.S.C. § 2254 in the United States District Court

for the District of Wyoming. The district court dismissed Mr. Teniente’s habeas

petition and denied a COA.




                                         -2-
                                  DISCUSSION

      A COA is a jurisdictional prerequisite to this court’s review of a habeas

corpus petition. See 28 U.S.C. § 2253(c); Allen v. Zavaras, 568 F.3d 1197, 1199

(10th Cir. 2009) (citing Miller-El v. Cockrell, 537 U.S. 322, 336 (2003)). “We

will issue a COA ‘only if the applicant has made a substantial showing of the

denial of a constitutional right.’” Allen, 568 F.3d at 1199 (quoting 28 U.S.C.

§ 2253(c)(2)). “To make such a showing, an applicant must demonstrate ‘that

reasonable jurists could debate whether . . . the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.’” Id. (quoting Slack v. McDaniel, 529

U.S. 473, 484 (2000)) (internal quotation marks omitted).

      In determining whether to grant a COA, we need not engage in a “full

consideration of the factual or legal bases adduced in support of the claims,”

Miller-El, 537 U.S. at 336; instead, we undertake “a preliminary, though not

definitive, consideration of the [legal] framework” applicable to each claim, id. at

338. Although an applicant need not demonstrate that his appeal will succeed, he

“must prove something more than the absence of frivolity or the existence of mere

good faith” to obtain a COA. Id. (quoting Barefoot v. Estelle, 463 U.S. 880, 893

(1983), superseded on other grounds by statute, 28 U.S.C. § 2253(c)(2)) (internal

quotation marks omitted).




                                         -3-
      Because the Wyoming Supreme Court addressed the merits of Mr.

Teniente’s claims, “AEDPA’s deferential treatment of state court decisions must

be incorporated into our consideration of [his] request for [a] COA.” Dockins v.

Hines, 374 F.3d 935, 938 (10th Cir. 2004). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), we may grant an application for a writ of

habeas corpus on behalf of a person in state custody whose claims were

adjudicated on the merits in state court only if the state court’s decision (1) “was

contrary to, or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the United States,” or

(2) “was based on an unreasonable determination of the facts in light of the

evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

      Mr. Teniente seeks a COA on his claim that the prosecutor committed

misconduct by introducing evidence of his alleged gang membership, as well as

his claim that the state trial court erred in admitting this evidence. He also claims

that the state trial court erroneously failed to treat improper contact with the jury

as presumptively prejudicial, and held an inadequate hearing regarding this

improper contact.

I. Evidence of Gang Membership

      Mr. Teniente argues that his Fourteenth Amendment due process rights

were violated when the prosecutor allegedly committed misconduct by

introducing evidence of gang membership, and when the state trial court allegedly

                                          -4-
erred by admitting this evidence. 1 However, as discussed below, these claims are

procedurally defaulted.

      A state prisoner generally must exhaust his available state court remedies

before a federal court will grant his habeas corpus petition. See 28 U.S.C.

§ 2254(b)(1)(A); Bland v. Sirmons, 459 F.3d 999, 1011 (10th Cir. 2006); see also

Fairchild v. Workman, 579 F.3d 1134, 1151 (10th Cir. 2009) (“Before we can

pass on the merits of [the petitioner’s] ineffective assistance claim, he must first

exhaust all available state-court remedies.”). A claim is exhausted when it has

been “fairly presented” to the state courts, i.e., when the petitioner has raised the

“substance” of his federal claim in the state courts. Bland, 459 F.3d at 1011

(quoting Picard v. Connor, 404 U.S. 270, 275, 278 (1971)) (internal quotation

marks omitted). This “requires more than presenting ‘all the facts necessary to

support the federal claim’ to the state court or articulating a ‘somewhat similar

state-law claim.’” Id. (quoting Anderson v. Harless, 459 U.S. 4, 6 (1982)). A

“petitioner cannot assert entirely different arguments from those raised before the

state court” in his federal habeas corpus petition. Id.

      1
             Arguably, Mr. Teniente also raises a claim that the prosecutor
committed misconduct by introducing evidence of potential retaliation against
jurors by relatives of Mr. Teniente or his victim. See Aplt. Br. at 15–18. Mr.
Teniente did not raise this argument in his habeas petition, however. See Aplt.
App. at 24–32 (Pet., filed Jan. 16, 2009). Accordingly, Mr. Teniente has waived
this claim. See, e.g., Parker v. Scott, 394 F.3d 1302, 1327 (10th Cir. 2005)
(“Parker raises several other alleged failures of counsel to object at trial, all of
which he has waived by failing to assert them in his district court habeas
petition.”).

                                          -5-
      But this is exactly what Mr. Teniente has done here. Mr. Teniente argues

before this court that his due process rights were violated when the prosecutor

introduced evidence of his alleged gang membership. In contrast, before the

Wyoming Supreme Court, Mr. Teniente based his prosecutorial misconduct

argument on the prosecutor doing the following: (1) introducing the fact that Mr.

Teniente’s co-defendant was convicted; (2) commenting upon Mr. Teniente’s

exercise of his right to remain silent; (3) vouching for and criticizing the

credibility of witnesses; (4) misstating evidence in closing argument; and

(5) improperly questioning defense witness Robert Riojas. Mr. Teniente did not

challenge as misconduct the prosecutor’s introduction of evidence of gang

membership. See Dist. Ct. Doc. 6-2 at 19–44 (Aplt. Wyo. Br., filed Jan. 3, 2006).

Thus, Mr. Teniente’s prosecutorial misconduct claim was not “fairly presented” to

the state court and is therefore not exhausted.

      Mr. Teniente does argue before this court that his due process rights were

violated when the state trial court admitted this evidence of gang activity.

Although Mr. Teniente challenged the admission of this evidence before the

Wyoming Supreme Court, he did so solely on the basis that this evidence was

irrelevant and prejudicial under state evidentiary law; he did not make a federal

due process challenge. 2 See id. at 45–55. Thus, Mr. Teniente did not fairly

      2
            To the extent Mr. Teniente reasserts his state evidentiary-law
challenge here, it is not a basis for habeas relief even though it was not
                                                                        (continued...)

                                          -6-
present his evidentiary due process claim to the state court and it is likewise

unexhausted. As the United States Supreme Court has explained:

             If state courts are to be given the opportunity to correct alleged
             violations of prisoners’ federal rights, they must surely be alerted
             to the fact that the prisoners are asserting claims under the
             United States Constitution. If a habeas petitioner wishes to claim
             that an evidentiary ruling at a state court trial denied him the due
             process of law guaranteed by the Fourteenth Amendment, he
             must say so, not only in federal court, but in state court.

                    . . . Respondent did not apprise the state court of his claim
             that the evidentiary ruling of which he complained was not only
             a violation of state law, but denied him the due process of law
             guaranteed by the Fourteenth Amendment. . . . The California
             Court of Appeal analyzed the evidentiary error by asking whether
             its prejudicial effect outweighed its probative value, not whether
             it was so inflammatory as to prevent a fair trial. . . . [T]hose
             standards are no more than somewhat similar, not virtually
             identical . . . . [M]ere similarity of claims is insufficient to
             exhaust.




      2
              (...continued)
procedurally defaulted. “Federal habeas review is not available to correct state
law evidentiary errors; rather it is limited to violations of constitutional rights.”
Smallwood v. Gibson, 191 F.3d 1257, 1275 (10th Cir. 1999) (citing Estelle v.
McGuire, 502 U.S. 62, 67–68 (1991)); see also Wilson v. Corcoran, 131 S. Ct. 13,
16 (2010) (per curiam) (“[I]t is only noncompliance with federal law that renders
a State’s criminal judgment susceptible to collateral attack in the federal
courts.”); id. at 17 (“It is not enough to note that a habeas petitioner asserts the
existence of a constitutional violation; unless the federal court agrees with that
assertion, it may not grant relief.”). “We may not provide habeas corpus relief on
the basis of state court evidentiary rulings ‘unless they rendered the trial so
fundamentally unfair that a denial of constitutional rights results.’” Duckett v.
Mullin, 306 F.3d 982, 999 (10th Cir. 2002) (quoting Mayes v. Gibson, 210 F.3d
1284, 1293 (10th Cir. 2000)).

                                      -7-
Duncan v. Henry, 513 U.S. 364, 365–66 (1995) (citations omitted) (internal

quotation marks omitted); accord Hawkins v. Mullin, 291 F.3d 658, 673–74 (10th

Cir. 2002).

      Generally, federal courts “should dismiss unexhausted claims without

prejudice so that the petitioner can pursue available state-court remedies.” Bland,

459 F.3d at 1012. However, if the state court in which petitioner must exhaust his

claims “would now find those claims procedurally barred, there is a procedural

default for the purposes of federal habeas review.” Id. (quoting Dulin v. Cook,

957 F.2d 758, 759 (10th Cir. 1992)) (internal quotation marks omitted).

      Wyoming procedurally bars a claim from being raised in a post-conviction

proceeding if it “[c]ould have been raised but was not raised in a direct appeal.”

Wyo. Stat. Ann. § 7-14-103(a)(i); see, e.g., Keats v. State, 115 P.3d 1110, 1115

(Wyo. 2005) (“Any claim that could have been raised on direct appeal, but was

not raised, is procedurally barred from being raised on a petition for

post-conviction relief.”). We can discern no reason why Mr. Teniente’s

Fourteenth Amendment due process claims of prosecutorial misconduct and

evidentiary error could not have been raised on direct appeal. Thus, under

Wyoming law, the claims are procedurally barred.

      Moreover, it is too late in any event for Mr. Teniente to seek post-

conviction relief, as his judgment and sentence was filed on April 26, 2005, Dist.

Ct. Doc. 1-3 at 4–6 (J., filed Apr. 26, 2005), and Wyoming bars petitions “filed

                                         -8-
more than five (5) years after the judgment of conviction was entered.” Wyo.

Stat. Ann. § 7-14-103(d); see, e.g., Harlow v. State, 105 P.3d 1049, 1076 n.24

(Wyo. 2005) (“Wyo. Stat. Ann. § 7-14-103(d) provides that a post-conviction

relief petition must be filed within five years of the date of conviction.”). Thus,

Mr. Teniente has procedurally defaulted his Fourteenth Amendment due process

claims concerning the evidence of gang membership.

      “On habeas review, this court will not consider issues that have been

defaulted in state court on an independent and adequate state procedural ground,

unless the petitioner can demonstrate cause and prejudice or a fundamental

miscarriage of justice.” Brown v. Sirmons, 515 F.3d 1072, 1092 (10th Cir. 2008)

(quoting Hickman v. Spears, 160 F.3d 1269, 1271 (10th Cir. 1998)) (internal

quotation marks omitted). Wyoming’s procedural bars to claims not raised on

direct appeal or raised in post-conviction petitions filed more than five years after

entry of judgment are independent and adequate. See Phillips v. Ferguson, 182

F.3d 769, 773–74 (10th Cir. 1999) (“[W]e hold Wyo. Stat. Ann. § 7-14-103(d) to

be an ‘adequate’ state procedural rule.”); Parkhurst v. Shillinger, 128 F.3d 1366,

1370 (10th Cir. 1997) (characterizing § 7-14-103(d)’s five-year time limit as

“adequate and independent”); see also Skinner v. Abbott, 141 F. App’x 727, 733

(10th Cir. 2005) (“Wyoming courts have consistently and evenhandedly applied

the state law procedural bar to cases raising shackling issues for the first time in a

request for post-conviction relief. Therefore, the state court judgment barring

                                          -9-
Skinner’s claim is based on independent and adequate state law grounds,

precluding our review.”); Lacey v. Ferguson, No. 98-8071, 1999 U.S. App.

LEXIS 14836, at *4–5 (10th Cir. June 29, 1999) (characterizing requirement that

claims be raised on direct appeal as “an adequate and independent state ground”);

Stambaugh v. Shillinger, No. 96-8025, 1996 U.S. App. LEXIS 25392, at *6 (10th

Cir. Sept. 27, 1996) (characterizing requirement that claims be raised on direct

appeal as an “independent and adequate state procedural rule[] under which Mr.

Stambaugh has defaulted”).

      Mr. Teniente asserts neither cause and prejudice nor a fundamental

miscarriage of justice to excuse his procedural default. Accordingly, Mr.

Teniente’s Fourteenth Amendment due process claims of prosecutorial

misconduct and evidentiary error are procedurally barred.

II. Improper Jury Contacts

      During trial, Mr. Teniente’s girlfriend approached a female juror in a public

restroom, introduced herself, and said that she had just had Mr. Teniente’s baby

and that “things were really hard.” See Teniente, 169 P.3d at 519. The juror did

not respond to this communication. Instead, she terminated the encounter and

immediately reported the incident to the bailiff. When the bailiff notified the

court, the court “informed the juror, via the bailiff, that it was comfortable with

her continued service on the jury, as long as the juror was also comfortable with

continuing.” Id. The juror indicated that she felt comfortable continuing to

                                         -10-
serve, “but admitted the contact did make her a bit nervous.” Id. (internal

quotation marks omitted).

      This incident, however, prompted the jury to later send a note to the court,

which read: “During our deliberation some concerns have arose [sic] about the

safety and any retaliation of either family, towards any of us or our families.

Some of us have been approached by some of the family members. Please advise

us of our course of action.” Id. at 518–19.

      Mr. Teniente apparently first became aware of the jury’s note during the

course of his direct appeal. “At that time, the record was silent as to what, if any,

action the court took in response to the note.” Id. at 519 n.2. The court remanded

the case to the trial court “for [the] purpose[] of developing the record regarding

the note.” Id. The trial court subsequently conducted an evidentiary hearing. In

the context of that hearing, facts came to light concerning not only the district

court’s handling of the note, but also facts related to the prior encounter between

Mr. Teniente’s purported girlfriend and the juror, which provided the impetus for

the note.

A. Presumption of Prejudice

      Mr. Teniente argues that the Wyoming Supreme Court’s decision was

contrary to clearly established federal law because it failed to treat the jury

contact as presumptively prejudicial as required by Remmer v. United States

(Remmer I), 347 U.S. 227 (1954). See Aplt. Br. at 45. We disagree. It is

                                         -11-
possible that the Wyoming Supreme Court’s juror-contact analysis adhered to the

presumption of Remmer I. However, even if it did not, in light of subsequent

Supreme Court precedent in effect at the time that the Wyoming Supreme Court

ruled on Mr. Teniente’s claim, we cannot conclude that the Wyoming Supreme

Court’s decision was contrary to, or involved an unreasonable application of,

clearly established federal law. Therefore, reasonable jurists could not debate the

correctness of the district court’s resolution of this claim.

      Remmer I involved a third-party’s communications with a juror and his

alleged attempt to bribe the juror. The Supreme Court opined 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 . . . .” 347 U.S. at 229

(emphasis added). “The presumption is not conclusive, but the burden rests

heavily upon the Government to establish, after notice to and hearing of the

defendant, that such contact with the juror was harmless to the defendant.” Id.

(emphasis added).

      However, in the context of a juror-bias claim, the Supreme Court in Smith

v. Phillips, 455 U.S. 209 (1982), later explained that it “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 (emphasis added). The Court

cited and expressly relied upon the reasoning of Remmer I for this proposition.

                                          -12-
Id. The Fifth Circuit has observed that “[t]his language [of Phillips] is difficult to

reconcile with a presumption of prejudice warranting rebuttal by the

government.” United States v. Sylvester, 143 F.3d 923, 934 (5th Cir. 1998); see

also United States v. Williams-Davis, 90 F.3d 490, 496 (D.C. Cir. 1996) (“Of

course one might distinguish between juror partiality [in Phillips] and private

contacts [in Remmer I], but, far from doing so, the Court cited Remmer, and the

attempted juror bribe there, as an illustration of the principle it was invoking.

But assuring the defendant ‘an opportunity to prove actual bias’ is out of synch

with the Remmer presumption; why would a defendant enjoying a presumption in

his favor need such an opportunity?”).

      Principally based upon a reading of Phillips, 3 some federal

courts—including a few of our sister circuits—have viewed “the Supreme

Court . . . [as] hav[ing] backed away” from the holding of Remmer I that “any

outside influence on the jury was presumptively prejudicial; the burden f[alling]

on the government to rebut this presumption.” Sylvester, 143 F.3d at 933; see id.

at 934–35 (“reject[ing] the Remmer presumption” and “agree[ing] that the

Remmer presumption of prejudice cannot survive Phillips and Olano”); United

States v. Pennell, 737 F.2d 521, 532 (6th Cir. 1984) (“We conclude that Phillips

      3
             At least two circuit courts also have concluded that the Supreme
Court’s decision in United States v. Olano, 507 U.S. 725 (1993), casts doubt on
the continuing vitality of Remmer I’s presumption. See Sylvester, 143 F.3d at
934; Williams-Davis, 90 F.3d at 496.


                                         -13-
has indeed altered the law concerning unauthorized communications with

jurors. . . . In light of Phillips, the burden of proof rests upon a defendant to

demonstrate that unauthorized communications with jurors resulted in actual juror

partiality. Prejudice is not to be presumed.”); see also Williams-Davis, 90 F.3d at

497 (discussing Supreme Court cases, including Phillips, and stating, “[t]hus we

think the district court was correct under the Supreme Court’s and our cases to

inquire whether any particular intrusion showed enough of a ‘likelihood of

prejudice’ to justify assigning the government a burden of proving harmlessness.”

(emphasis added) (quoting United States v. William-Davis, 821 F. Supp. 727, 738

(D.D.C. 1996))). 4 Indeed, we have previously alluded to this development. See

      4
             We pause to note that, after Williams-Davis, the D.C. Circuit dealt
with a juror-contact contention and suggested that there was a “tension” in its
cases regarding the ongoing vitality of Remmer I’s presumption of prejudice.
United States v. Gartmon, 146 F.3d 1015, 1028 (D.C. Cir. 1998). Specifically,
the court observed that even after Phillips, “many of our cases have continued to
recognize the presumption of prejudice and to place the burden of disproving it on
the government.” Id. The Gartmon court determined that it was unnecessary to
“resolve this debate” in order to decide the juror-contact issue before it. Id.

       We do not believe that the Gartmon court’s observations undercut the
usefulness of Williams-Davis in our analysis. First, the court did not purport to
overrule Williams-Davis and, indeed, it was not empowered to do so. See
LaShawn A. v. Barry, 87 F.3d 1389, 1395 (D.C. Cir. 1996) (“One three-judge
panel, therefore, does not have the authority to overrule another three-judge panel
of the court.”); see also Davis v. U.S. Dep’t of Justice, 610 F.3d 750, 753 (D.C.
Cir. 2010), pet. for cert. filed, 79 U.S.L.W. 3330 (U.S. Nov. 16, 2010) (No. 10-
661). Consequently, Williams-Davis is still good law and binding precedent in
the D.C. Circuit. Second, all of the cases cited by the Gartmon court to reflect
the D.C. Circuit’s ongoing adherence to Remmer I’s presumption were decided
before the Supreme Court’s decision in Olano. That decision played a significant
                                                                       (continued...)

                                          -14-
United States v. Scull, 321 F.3d 1270, 1280 n.5 (10th Cir. 2003) (“We note that

this circuit and others have questioned the appropriate breadth of Remmer’s

presumption of prejudice rule, postulating the standard should be significantly

narrowed, or replaced altogether.” (emphasis added) (citing United States v.

Greer, 620 F.2d 1383, 1385 n.1 (10th Cir. 1980))). We, however, have deemed

ourselves obliged to follow Remmer I’s presumption “[i]n the absence of Supreme

Court authority to the contrary.” Id.

      In this case, the Wyoming Supreme Court began its analysis of the juror-

contact issue by quoting from Remmer I. Specifically, the court quoted Remmer

      4
              (...continued)
role in Williams-Davis’s analysis and holding that Remmer I’s presumption was
no longer operative. See Williams-Davis, 90 F.3d at 496; see also supra note 3.
Whether the cases cited by the Gartmon court would have come out the same way
(i.e., upholding the Remmer I presumption) had they been able to consider the
Supreme Court’s decision in Olano is unclear. Third, and likely of greatest
importance, the focus of our analysis is not on whether those decisions that have
backed away from Remmer I’s presumption, like Williams-Davis, are
correct—indeed, we have not sided with them. See United States v. Scull, 321
F.3d 1279, 1280 n.5 (10th Cir. 2003). Rather, our focus is on the existence of a
debate among reasonable jurists of the federal courts with regard to the ongoing
vitality of the Remmer I presumption, given subsequent Supreme Court
developments. And, in particular, our focus is on the implications of that debate
for the question we must decide infra—whether the Wyoming Supreme Court’s
assumed departure from the Remmer I presumption resulted in a ruling that was
contrary to, or involved an unreasonable application of, federal law. Williams-
Davis reinforces that there is in fact a lively debate among federal courts—and, as
Gartmon suggests, within federal courts—concerning the ongoing vitality of
Remmer I’s presumption. This debate among reasonable jurists bolsters our
conclusion, discussed infra, that the Wyoming Supreme Court’s ruling on the
juror-contact issue—even if it is assumed to have departed from Remmer I’s
presumption—was neither contrary to, nor involved an unreasonable application
of, federal law.

                                        -15-
I’s language concerning the presumption of prejudice and the government’s heavy

burden to overcome it. See Teniente, 169 P.3d at 519. Then, it claimed to “turn”

in part “to a legal principle established” in Remmer I “[i]n analyzing th[e] [juror-

contact] issue.” Id. However, the Wyoming Supreme Court also heavily relied

upon its own juror-contact jurisprudence, including Skinner v. State, 33 P.3d 758

(Wyo. 2001), and Gunnett v. State, 104 P.3d 775 (Wyo. 2005). It noted that

Skinner cited to Phillips, and it interpreted Skinner as holding that “a mere

showing of improper communication is not sufficient—prejudice must also be

shown.” Teniente, 169 P.3d at 519 (emphasis added). Then, the Wyoming

Supreme Court quoted at some length from Gunnett, where it previously had

observed that in the context of alleged improper juror contact, “many courts have

abandoned the presumption mechanism in favor of common sense inquiries into

the likely effect of the information or influences on the average juror.” Id. at 520

(alteration in original) (quoting Gunnett, 104 P.3d at 781) (internal quotation

marks omitted). The Wyoming Supreme Court in Teniente thus held that “[h]ere,

[the] lessons from both Skinner and Gunnett undeniably hold true . . . [and] we

confidently conclude that the district court’s actions regarding the note were

altogether appropriate.” Id.

      Because the Wyoming Supreme Court expressly acknowledged the

Remmer I presumption and claimed to rely in part upon Remmer I’s holding, it is

possible that the Wyoming Supreme Court upheld the trial court’s handling of the

                                         -16-
juror-contact issue under the Remmer I presumption. Yet, we recognize from a

careful review of the court’s analysis—which relied upon its opinions in Skinner

and Gunnett—that it is more likely that this did not take place. That, instead, the

Wyoming Supreme Court deviated from a strict application of Remmer I’s

presumption “in favor of [a] common sense inquir[y] into the likely effect of the

information or influences on the average juror.” Id. (quoting Gunnett, 104 P.3d at

773) (internal quotation marks omitted).

      However, even if that were true, we would not conclude that the Wyoming

Supreme Court’s decision was contrary to, or involved an unreasonable

application of, clearly established federal law. It would not have been

unreasonable for the Wyoming Supreme Court to have interpreted the subsequent

Supreme Court case law—most notably, Phillips—as “work[ing] a substantive

change in the law,” Pennell, 737 F.2d at 532 n.10, and authorizing, at the very

least, a more fluid approach, without a presumption, that “focus[es] on the

specific facts of the alleged contact,” Williams-Davis, 90 F.3d at 496–97. The

reasonableness of “question[ing] the appropriate breadth of Remmer’s

presumption of prejudice rule,” and “postulating [that] the standard should be

significantly narrowed, or replaced altogether,” is underscored by the significant

number of federal courts that have done just that. Scull, 321 F.3d at 1280 n.5; see

Sylvester, 143 F.3d at 934 (“[T]he trial court must first assess the severity of the

suspected intrusion [on the jury]; only when the court determines that prejudice is

                                         -17-
likely should the government be required to prove its absence.”); Pennell, 737

F.2d at 532 (“In light of Phillips, the burden of proof rests upon a defendant to

demonstrate that unauthorized communications with jurors resulted in actual juror

partiality. Prejudice is not to be presumed.”); see also Williams-Davis, 90 F.3d at

496–97 (“Although often referring to Remmer, this court has in fact not treated

the supposed ‘presumption’ as particularly forceful, but rather has accepted the

necessity of focusing on the specific facts of the alleged contact, and, as a result,

has found broad discretion in the trial court to assess the effect of alleged

intrusions.”).

      Just because we have felt obliged to adhere to the presumption of Remmer I

does not mean that a contrary view of the dictates of Supreme Court case law is

unreasonable. It should not be forgotten that it is that law—and not ours—that

defines the boundaries of clearly established federal law for AEDPA purposes.

See, e.g., House v. Hatch, 527 F.3d 1010, 1016 (10th Cir. 2008) (“[C]learly

established law consists of Supreme Court holdings in cases where the facts are at

least closely-related or similar to the case sub judice.”). Therefore, ultimately we

cannot conclude that the Wyoming Supreme Court’s decision with regard to the

juror-contact issue was contrary to, or involved an unreasonable application of,

clearly established federal law. Consequently, reasonable jurists could not debate

the correctness of the district court’s resolution of this claim.




                                          -18-
B. Adequacy of Hearing

      Mr. Teniente argues that the hearing on the improper jury contact was

insufficiently comprehensive, contrary to the requirement of Remmer v. United

States (Remmer II), 350 U.S. 377 (1956), that “the entire picture should be

explored.” Id. at 379. Specifically, he asserts that the state trial court failed to

consider the content of the jury’s note, the impact on the other jurors, and the

“atmosphere of fear and tension” that existed at trial. See Aplt. Br. at 28, 31,

34–35, 38–39, 43–45. We cannot conclude that the Wyoming Supreme Court’s

decision was contrary to, or involved an unreasonable application of, clearly

established federal law.

      Perhaps the most fundamental problem with Mr. Teniente’s argument is

that, even under Remmer II, it is reasonable to accord the trial court considerable

discretion in determining whether any improper juror contact was prejudicial to

the defendant. See Scull, 321 F.3d at 1280 (“Pursuant to Remmer, we normally

review for abuse of discretion the district court’s decision to hold a hearing and

its determination whether any jury taint requires a new trial.”); id. at 1278 (“The

district court has ‘broad discretion in determining how to handle allegations of

juror bias.’” (quoting United States v. Bornfield, 145 F.3d 1123, 1132 (10th Cir.

1998))); accord United States v. Williams, 822 F.2d 1174, 1190 (D.C. Cir. 1987)

(“[T]he trial court should have considerable latitude in determining the

methodology to be employed.”), superseded on other grounds by amendment to

                                         -19-
the Guidelines, as recognized in United States v. Caballero, 936 F.2d 1292,

1298–99 (D.C. Cir. 1991); United States v. Coleman, 805 F.2d 474, 482 (3d Cir.

1986) (“[T]he district court has discretion to determine what procedures are

necessary for a thorough examination of possible prejudice.”). Mr. Teniente has

not cited to any legal authority that even suggests a contrary view of the import of

Remmer II. Furthermore, at least two of our sister circuits have suggested that the

Supreme Court’s post-Remmer II decision in Olano has clarified that Remmer II

does not impose particular requirements for the conduct of hearings to examine

juror bias. See Williams-Davis, 90 F.3d at 496 (“[T]he Court [in Olano] appeared

to see Remmer largely as a case illustrating the importance of weighing the

likelihood of prejudice rather than as a source of rigid rules.”); see also Sylvester,

143 F.3d at 934 (noting that Williams-Davis “has understood Olano as

reconfiguring Remmer” and adopting a “rule” involving a case-specific inquiry

for prejudice, which “comports with our longstanding recognition of the trial

court’s considerable discretion in investigating and resolving charges of jury

tampering”). We cannot conclude that these circuits’ interpretation of Olano is

unreasonable. Under this deferential standard, the Wyoming Supreme Court’s

decision to uphold the trial court’s handling of the juror-contact issue was neither

contrary to, nor involved an unreasonable application of, clearly established

federal law.




                                          -20-
      Mr. Teniente contends that the jury’s note suggests “the possibility of

multiple contacts” with the jury, which were not adequately explored. Aplt. Br. at

44. But Mr. Teniente’s counseled state-court filings did not complain of any

other juror contacts. See Dist. Ct. Doc. 6-2 at 11–12, 14, 17–18; Aplt. Wyo.

Reply Br. at 5–12 (filed Dec. 4, 2006). Therefore, arguably, Mr. Teniente has

failed to preserve this argument for our review. However, even if he has, the

argument fails. Mr. Teniente questions the evidentiary foundation of the state

trial court’s factual determination that “the specific incident that gave rise to the

note was that a female juror at some point was approached in an apparent and

very fleeting attempt by the defendant’s girlfriend to garner some sympathy for

him.” Aplt. App. at 154 (Findings & Conclusions Pursuant to Directive of

Supreme Ct., filed Oct. 20, 2006). However, Mr. Teniente marshals no evidence

to establish by clear and convincing proof that this factual determination is

wrong. See 28 U.S.C. § 2254(e)(1). In light of this factual finding, it would be

entirely reasonable for the state trial court not to explore the possibility of other

contacts with jurors.

      Lastly, we conclude that Mr. Teniente has not adequately developed his

argument that the state trial court “failed to take into account the atmosphere of

fear and tension, fostered by the prosecution, in which any contacts occurred,”

Aplt. Br. at 44; therefore, we decline to consider it. See, e.g., House, 527 F.3d at

1029 n.16 (citing Bronson v. Swensen, 500 F.3d 1099, 1104 (10th Cir. 2007)).

                                          -21-
Thus, Mr. Teniente has failed to establish that the Wyoming Supreme Court’s

decision to uphold the trial court’s handling of the hearing regarding the improper

juror-contact issue was contrary to, or involved an unreasonable application of,

clearly established federal law.

                                   CONCLUSION

      For the foregoing reasons, we cannot conclude that the Wyoming Supreme

Court’s rulings in this case were contrary to, or involved an unreasonable

application of, clearly established federal law. Accordingly, reasonable jurists

could not debate the correctness of the district court’s resolution of Mr.

Teniente’s petition. Therefore, we DENY Mr. Teniente’s application for a COA

and DISMISS his appeal.


                                       ENTERED FOR THE COURT



                                       Jerome A. Holmes
                                       Circuit Judge




                                        -22-
