                  FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


ENRIQUE ANTHONY GODOY,                No. 13-56024
       Petitioner-Appellant,
                                        D.C. No.
             v.                  2:10-cv-07927-R-AGR

MARION SPEARMAN,
      Respondent-Appellee.                OPINION


      Appeal from the United States District Court
         for the Central District of California
       Manuel L. Real, District Judge, Presiding

       Argued and Submitted September 2, 2015
                Pasadena, California

                  Filed August 25, 2016

 Before: Diarmuid F. O’Scannlain, Raymond C. Fisher,
           and Jay S. Bybee, Circuit Judges.

            Opinion by Judge O’Scannlain;
               Dissent by Judge Fisher
2                     GODOY V. SPEARMAN

                           SUMMARY*


                          Habeas Corpus

    The panel affirmed the district court’s judgment denying
California state prisoner Enrique Anthony Godoy’s habeas
corpus petition challenging his second-degree murder
conviction based on juror misconduct, the denial of an
evidentiary hearing, and the denial of a continuance.

    Because it was bound by Tarango v. McDaniel, 815 F.3d
1211 (9th Cir. 2016), the panel assumed that Godoy was
entitled under clearly established law to a presumption of
prejudice from a juror’s alleged misconduct – i.e., that she
was conferring with a “judge up north” during the trial. The
panel held that the California Court of Appeal did not
unreasonably apply clearly established law in concluding that
the government had rebutted the presumption. The panel
rejected Godoy’s contention that the California Court of
Appeal unreasonably determined the facts by failing to
consider additional evidence on direct appeal that Godoy
offered in his state habeas petition.

    The panel rejected Godoy’s contention that the California
Court of Appeal unreasonably applied clearly established
federal law when it concluded that the state trial court was
within its discretion in refusing Godoy’s request for an
additional evidentiary hearing to investigate his juror
misconduct claim.


  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                   GODOY V. SPEARMAN                      3

    The panel held that the California Court of Appeal’s
affirmance of the trial judge’s denial of Godoy’s motion for
a third continuance was not unreasonable.

   Dissenting, Judge Fisher wrote that the California Court
of Appeal denied an evidentiary hearing on the juror
misconduct claim under the wrong legal rule, and then
unreasonably applied Remmer v. United States, 347 U.S. 227
(1954), in concluding the presumption of prejudice was
rebutted.


                       COUNSEL

Stephanie M. Adraktas (argued), Berkeley, California, for
Petitioner-Appellant.

Stephanie A. Miyoshi (argued) and Colleen M. Tiedemann,
Deputy Attorneys General; Lance E. Winters, Senior
Assistant Attorney General; Gerald Engler, Chief Assistant
Attorney General; Kamela D. Harris, Attorney General of
California; Office of the Attorney General, Los Angeles,
California, for Respondent-Appellee.
4                   GODOY V. SPEARMAN

                         OPINION

O’SCANNLAIN, Circuit Judge:

    We must decide whether a state appellate court’s
affirmance of a conviction for second degree murder, along
with its denial of a request for an evidentiary hearing and for
a continuance, were contrary to, or involved an unreasonable
application of, clearly established federal constitutional law.

                               I

                              A

    Enrique Godoy and several friends were standing on the
balcony of his apartment in Los Angeles when Chasen
Pacheco, an acquaintance of Godoy, appeared below.
Pacheco had been a friend until a recent dispute over
marijuana, and asked Godoy “to come downstairs so he could
talk to him.” There, Godoy and Pacheco started wrestling on
the grass and throwing punches at each other.

   Godoy’s friends soon broke up the fight, and one friend,
Brett Voegeli, grabbed Godoy and pulled him up the stairs.
Pacheco continued to talk to Godoy, imploring him to go
back down “to finish the fight.” Eventually, Godoy’s friend
Rodolfo Hernandez, standing nearby, heard Godoy say, “Let
me finish him off.”

    When Pacheco reached the top of the stairs, Voegeli tried
to intervene, but Pacheco pulled him out of the way and said
to Godoy, “Let’s finish this.” Pacheco had nothing in his
hands and did not try to hit Godoy, and instead, asked
“What’s up?” Godoy then stabbed Pacheco three times in the
                    GODOY V. SPEARMAN                         5

chest and stomach and punched him in the face. Godoy said,
“That’s what’s up” and, “Get the fuck out of here.” Pacheco
later died from the stab wounds.

                               B

    In due course, a Los Angeles County Superior Court jury
convicted Godoy of second degree murder. An initial
sentencing hearing took place on April 27, 2006, whereupon
Godoy’s counsel requested a forty-day continuance to prepare
a motion for a new trial. The trial court granted the
continuance, and set a new hearing date for June 12th. The
court also instructed defense counsel to serve the prosecutor
with his motion by May 30th.

    One week after the due date, Godoy’s counsel filed his
motion for a new trial and served it to the prosecutor. In that
motion, he asserted among other complaints that one of the
active jurors in Godoy’s trial, labeled Juror 10, committed
misconduct by “conferr[ing] with a person referred to as a
Judge up North.” In a subsequent response to the
prosecutor’s motion opposing a new trial, Godoy’s counsel
stated that he would “present live witness testimony or
declarations from jury panel [sic] at the time of hearing.” On
June 8th, the prosecutor requested discovery on any witnesses
the defense planned on calling at the upcoming hearing.
Godoy’s counsel stated that he would fax the names of such
witnesses that day, but failed to do so.

     At the June 12th hearing, Godoy’s counsel claimed that
two alternate jurors told him that “there was a juror who was
text messaging and speaking with a judge up north” during
trial. He stated that one of these jurors, an alternate referred
to in the record as E.M., was present and ready to testify. The
6                   GODOY V. SPEARMAN

prosecutor asked for a continuance, pointing out that Godoy’s
counsel had not disclosed the names and expected testimony
of potential witnesses as promised and as California law
requires. The court ruled that the prosecutor was entitled to
discovery of witness statements the defense would offer, and
therefore continued the hearing again to June 29th.

     On June 22, Godoy’s counsel sent the prosecutor a
declaration from a second alternate juror, referred to as N.L.
This declaration stated that during trial, Juror 10 exchanged
text messages with her “judge friend.” The declaration stated
that “[w]hen the jury was not sure what was going on or what
procedurally would happen next, juror number ten would
communicate with her friend and disclose to the jury what he
said.” In response to these allegations, the prosecutor filed a
second supplemental response to Godoy’s motion for a new
trial. She asserted that N.L.’s statements demonstrated that
the communications between Juror 10 and her “judge friend”
concerned only procedural matters rather than matters
relevant to the jury’s deliberation or the verdict.

    On June 28th, one day before the scheduled hearing,
Godoy’s counsel filed a motion requesting an additional
thirty-day continuance. He stated that he required this
additional continuance because he was “engaged in trial” in
another murder case, and because the prosecutor filed her
second response to Godoy’s motion—the response to defense
counsel’s surprise arguments at the previous hearing—while
he was in trial. The state opposed the motion, arguing that
Godoy’s counsel had adequate time to prepare.

    At the hearing the next day, the court denied defense
counsel’s motion to continue the hearing for a third time,
finding that “there [was] no legal cause stated.” During this
                   GODOY V. SPEARMAN                        7

exchange, the court repeatedly asked Godoy’s counsel
whether he had more affidavits or evidence relevant to the
juror misconduct issue that he would like to present. Counsel
stated he was “not prepared” because he had been busy with
the other trial. Having considered N.L.’s affidavit along with
arguments previously offered by Godoy’s counsel and the
prosecution, the trial judge then denied Godoy’s motion for
a new trial.

                              C

    Godoy appealed his conviction to the California Court of
Appeal, arguing that the trial court erred in denying the
motion for a new trial on the basis of juror misconduct.
While his direct appeal was pending, Godoy also filed a
petition for writ of habeas corpus in the same court. As part
of his habeas petition, Godoy included an additional
declaration from E.M.—the alternate juror Godoy’s lawyer
brought unannounced to the first hearing—as well as
supporting declarations from Godoy’s trial counsel and
appellate counsel. E.M.’s declaration elaborated on Juror
10’s alleged misconduct with her “judge friend” up north.
According to E.M., Juror 10 texted her judge friend to ask
what would happen after the trial judge informed the jury that
he had to leave for a medical procedure. E.M. also asserted
that Juror 10 received advice from her “judge friend” to write
the trial judge a note in an attempt to be excused from jury
duty.

    On March 18, 2009, the California Court of Appeal took
judicial notice of the record submitted with Godoy’s direct
appeal and denied Godoy’s request to consolidate his habeas
petition and his direct appeal. The Court of Appeal then
denied his habeas petition on the merits, concluding that
8                       GODOY V. SPEARMAN

Godoy had “fail[ed] to state a prima facie case for relief.”
That same day, on direct appeal, the Court of Appeal affirmed
Godoy’s conviction in an unpublished opinion. Godoy filed
petitions for review of both decisions in the California
Supreme Court, which were summarily denied on July 8,
2009.1

                                     D

    On October 21, 2010, Godoy filed his federal habeas
petition. After accepting findings and recommendation of the
magistrate judge, the district court denied the petition on May
15, 2013. The district court also denied Godoy a certificate
of appealability.

    Godoy filed a timely notice of appeal, and we granted
Godoy’s request for a certificate of appealability for the
issues raised in this appeal.

                                     II

                                     A

    We review de novo a district court’s denial of a § 2254
habeas corpus petition. Lopez v. Thompson, 202 F.3d 1110,
1116 (9th Cir. 2000) (en banc). Because Godoy filed his
petition after April 24, 1996, the Antiterrorism and Effective
Death Penalty Act (“AEDPA”) governs review of his claims.
Estrella v. Ollison, 668 F.3d 593, 597 (9th Cir. 2011). Under


    1
    Godoy subsequently filed another habeas petition in the California
Supreme Court. However, because that petition raised only additional
claims unrelated to those certified for our review, it is not relevant to our
analysis.
                    GODOY V. SPEARMAN                        9

AEDPA, when a state court has adjudicated a claim on the
merits, a district court may not grant a habeas petition unless
the state court’s 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

       (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 proceeding.

28 U.S.C. § 2254(d).

    A decision is “contrary to” Supreme Court precedent
where “the state court arrives at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or if the
state court decides a case differently than [the Supreme]
Court has on a set of materially indistinguishable facts.”
Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court
unreasonably applies clearly established federal law if it
“identifies the correct governing legal rule . . . but
unreasonably applies it to the facts of the particular state
prisoner’s case.” White v. Woodall, 134 S. Ct. 1697, 1705
(quoting Williams, 529 U.S. at 407–08). “[A]n unreasonable
application of federal law is different from an incorrect
application of federal law.” Williams, 529 U.S. at 410.
Likewise, a state court’s refusal to extend Supreme Court
precedent is not an unreasonable application of that
precedent. See White, 134 S. Ct. at 1706. Ultimately, “[a]
state court’s determination that a claim lacks merit precludes
10                  GODOY V. SPEARMAN

federal habeas relief so long as fairminded jurists could
disagree on the correctness of the state court’s decision.”
Harrington, 562 U.S. at 101 (internal quotation marks
omitted). “If this standard is difficult to meet, that is because
it was meant to be.” Id. at 102.

    Under § 2254(d)(2)’s factual determination prong, “a
decision adjudicated on the merits in a state court and based
on a factual determination will not be overturned on factual
grounds unless objectively unreasonable in light of the
evidence presented in the state-court proceeding.” Miller-El
v. Cockrell, 537 U.S. 322, 340 (2003). A state court
unreasonably determines the facts where the “‘process
employed by the state court is defective,’ or ‘if no finding
was made by the state court at all.’” Hernandez v. Holland,
750 F.3d 843, 857 (9th Cir. 2014) (quoting Taylor v. Maddox,
366 F.3d 992, 999 (9th Cir. 2004)). Under this prong, the
question is “‘not whether a federal court believes the state
court’s determination was incorrect but whether that
determination was unreasonable—a substantially higher
threshold.’” Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th
Cir. 2012) (quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)). This is “‘a daunting standard—one that will be
satisfied in relatively few cases.’” Hernandez, 750 F.3d at
857 (quoting Taylor, 366 F.3d at 999).

                               B

     When assessing a state court’s determination, “we look
‘to the last reasoned decision’ that finally resolves the claim
at issue.” Amado v. Gonzalez, 758 F.3d 1119, 1130 (9th Cir.
2014) (quoting Yist v. Nunnemaker, 501 U.S. 797, 804
(1991)). Godoy does not attempt to pinpoint which state
court decision serves as the basis for his habeas claim.
                   GODOY V. SPEARMAN                       11

Instead, he levels arguments at both the California Court of
Appeal’s opinion on direct review as well as its one-sentence
denial of his habeas petition. Because the California Supreme
Court summarily denied review of both decisions, we must
“look through” these summary denials to uncover the last
reasoned decision on the merits. See McCormick v. Adams,
621 F.3d 970, 976 (9th Cir. 2010); Gill v. Ayers, 342 F.3d
911, 917 n.5 (9th Cir. 2003).

     It is difficult if not impossible to determine which
California Court of Appeal decision is the last reasoned
decision in this case, since the Court of Appeal affirmed
Godoy’s conviction and denied his habeas petition on the
same day. That said, we doubt the denial of Godoy’s habeas
petition can properly be considered a reasoned decision, since
it states only that Godoy had “fail[ed] to state a prima facie
case for relief.” See Cullen v. Pinholster, 131 S. Ct. 1388,
1402 n.12 (2011) (equating a state court’s determination that
“the claims made in th[e] petition do not state a prima facie
case entitling the petitioner to relief” with a summary denial
on the merits (quoting In re Clark, 5 Cal. 4th 750, 770
(1993))). Thus, we ask whether the Court of Appeal’s
decision affirming Godoy’s conviction on direct review was
so egregious that it transgressed AEDPA’s demanding
standards.

                             III

    Under the Sixth and Fourteenth Amendments, a criminal
defendant has the right to be tried by an impartial jury. See
U.S. Const. amend. VI; Turner v. Louisiana, 379 U.S. 466,
472–73 (1965) (applying the Sixth Amendment right to the
States via the Fourteenth Amendment). Consistent with that
guarantee, the Supreme Court has applied a presumption of
12                  GODOY V. SPEARMAN

prejudice to certain kinds of juror misconduct, but has also
stated that such presumption may be rebutted where the
government demonstrates that the illicit contact with the juror
was harmless. See Remmer v. United States, 347 U.S. 227,
229 (1954); Mattox v. United States, 146 U.S. 140, 150
(1892). An overlapping line of Supreme Court precedent has
indicated that due process also requires “a trial judge [to be]
ever watchful to prevent prejudicial occurrences and to
determine the effect of such occurrences when they happen.”
Smith v. Phillips, 455 U.S. 209, 217 (1982); see also Remmer,
347 U.S. at 229–30. This appeal requires us to interpret these
precedents in order to determine: (1) whether the California
Court of Appeal unreasonably applied clearly established
federal law by concluding that the government had rebutted
a presumption of prejudice; and (2) whether the California
Court of Appeal acted contrary to or unreasonably applied
clearly established federal law in determining that the trial
judge was not required to conduct an additional hearing.

                               A

    Godoy first argues that he is entitled to a presumption of
prejudice under Remmer, Mattox, and Turner, and that the
California Court of Appeal unreasonably applied clearly
established federal law by failing to place the burden on the
government.

                               1

    The Supreme Court’s first and rather oblique statement
concerning a presumption of prejudice triggered by egregious
juror misconduct occurred more than a century ago. In
Mattox, a defendant presented juror affidavits stating that a
bailiff told the jury that the defendant on trial for murder had
                    GODOY V. SPEARMAN                         13

already killed two other people and that the jury had read a
newspaper article asserting that the evidence against the
defendant was so strong that he would be a “lucky man” if
found innocent. 146 U.S. at 143. The Court held the trial
court erred in refusing to consider these allegations and
reversed the defendant’s conviction, stating that “[p]rivate
communications, possibly prejudicial, between jurors and
third persons, or witnesses, or the officer in charge, are
absolutely forbidden, and invalidate the verdict unless their
harmlessness is made to appear.” Id. at 150.

     Some fifty years later, the Court refined the Mattox rule
when considering a similar instance of juror misconduct in
Remmer. There, an individual later found to be a friend of the
accused told the jury foreman that he “could profit by
bringing in a verdict” favorable to the defendant. 347 U.S. at
228–29; Remmer v. United States, 350 U.S. 377, 380 (1956)
(Remmer II). The jury foreman reported the incident to the
trial judge, who in turn requested an investigation by the FBI.
Remmer, 347 U.S. at 228. The FBI questioned the juror about
the incident but shared its report only with the judge and the
prosecutor, who concluded that the communication was likely
made in jest. Id. When the defendant learned of the
communication and the subsequent investigation, his counsel
brought a motion for a new trial which the trial court denied
without a hearing. Citing Mattox, the Supreme Court
remanded for a hearing and observed that “[i]n a criminal
case, any private communication . . . with a juror during a
trial about the matter pending before the jury is, for obvious
reasons, deemed presumptively prejudicial,” but that such
presumption may be rebutted where “the Government . . .
establish[es], after notice to and hearing of the defendant, that
such contact with the juror was harmless.” Id. at 229 (citing
Mattox, 146 U.S. at 148–50). Following the required hearing
14                      GODOY V. SPEARMAN

at the district court and a subsequent petition for certiorari,
the Supreme Court again considered the case and concluded
that the government failed to carry its burden in
demonstrating that the bribery offer did not affect the juror’s
“freedom of action as a juror.” Remmer II, 350 U.S. at 381.2

    In Turner, the Supreme Court held that a defendant’s
constitutional rights had been violated when the key
witnesses in a murder prosecution—two local sheriffs—were
also charged with providing for the jury’s daily needs
including transportation, meals, and lodging. 379 U.S. at
468–69. The Supreme Court held that kind of “continuous
and intimate association” triggered a presumption of
prejudice because of the “extreme prejudice inherent in th[e]
continual association between the jurors and . . . key
witnesses for the prosecution.” Id. at 473.

    Reading these cases at face value, we are skeptical that
any of them clearly establish that the allegations contained in
N.L.’s declaration entitled Godoy to a presumption of
prejudice under clearly established federal law. Remmer
presumed prejudice where the underlying conduct involved
a credible allegation of outright jury tampering. See United
States v. Dutkel, 192 F.3d 893, 894–85 (9th Cir. 1999)


     2
      During its initial consideration of the case, the Supreme Court
speculated that “[t]he sending of an F.B.I. agent in the midst of a trial to
investigate a juror as to his conduct is bound to impress the juror and is
very apt to do so unduly.” Remmer, 347 U.S. at 229. Having granted
certiorari a second time, however, the Court observed that the district
court’s subsequent investigation made plain that the F.B.I. interview was
not in fact a source of prejudice. Rather, it was the initial bribery offer
that rendered the juror “a disturbed and troubled man,” and the F.B.I.
interview merely failed to “disperse the cloud created by” this offer.
Remmer II, 350 U.S. at 381–82.
                    GODOY V. SPEARMAN                        15

(distinguishing jury tampering from “more prosaic kinds of
jury misconduct” and concluding that “the Supreme Court in
Remmer announced a special rule dealing with jury
tampering”). Moreover, unlike the communications at issue
in either Mattox or Remmer, N.L.’s declaration contained no
allegation that the alleged contact between Juror 10 and the
“judge up north” concerned “the matter pending before the
jury” such as Godoy’s guilt or innocence or a verdict the jury
should render. Remmer, 347 U.S. at 229; Mattox 146 U.S. at
142–43. Admittedly, we have held that Mattox’s presumption
of prejudice may apply irrespective of a communication’s
content where the unauthorized communication is “between
a juror and a witness or interested party.” Caliendo v.
Warden of Cal. Men’s Colony, 365 F.3d 691, 696 (9th Cir.
2004). But even this ruling is little help to Godoy, since the
“judge up north” who allegedly responded to Juror 10’s
texting was neither a witness nor otherwise interested in
Godoy’s trial. Nor does the juror misconduct alleged by
Godoy involve a “continuous and intimate association”
between a juror and anyone participating in Godoy’s trial.
Turner, 379 U.S. at 473. “Section 2254(d)(1) provides a
remedy for instances in which a state court unreasonably
applies this Court’s precedent; it does not require state courts
to extend that precedent or license federal courts to treat the
failure to do so as error.” White, 134 S. Ct. at 1706.

    Subsequent to argument in Godoy’s case, however, our
Court decided Tarango v. McDaniel, 815 F.3d 1211 (9th Cir.
2016). In Tarango, we stated that Mattox “compels a
criminal trial court to consider the prejudicial effect of any
external contact that has a ‘tendency’ to influence the
verdict.” Id. at 1221 (citing Mattox, 146 U.S. at 150–51).
We held further that a tendency to influence the verdict exists
per se and triggers a presumption of prejudice whenever there
16                  GODOY V. SPEARMAN

is “unauthorized external contact between a juror and a
government agent, whose official position ‘beyond question
carries great weight with a jury.’” Id. at 1223 (quoting
Parker v. Gladden, 385 U.S. 363, 365 (1966) (per curiam)).

    We question the correctness of Tarango’s broad holding,
especially in light of the Supreme Court’s admonitions to
“lower courts—and the Ninth Circuit in particular—against
‘framing our precedents at . . . a high level of generality.’”
Lopez v. Smith, 135 S. Ct. 1, 4 (2014) (per curiam) (quoting
Nevada v. Jackson, 133 S. Ct. 1990, 1994 (2013) (per
curiam)). Because we are bound by Tarango, however, we
assume that Godoy was entitled to a presumption of prejudice
under clearly established federal law.

                              2

   Even assuming a presumption of prejudice applies in
Godoy’s case, however, we have little trouble holding that the
California Court of Appeal’s analysis did not unreasonably
apply clearly established federal law by concluding the
government had rebutted the presumption.

     When considering Godoy’s claim, the Court of Appeal
first noted that under California law “[j]ury misconduct raises
a rebuttable presumption of prejudice,” and assessed Godoy’s
claim in a section of its opinion entitled “Juror Misconduct:
Presumption of Prejudice.” The court also identified in no
uncertain terms that Godoy’s argument centered on his
assertion that “the judgment must be reversed because the
People did not rebut th[e] presumption,” and responded by
concluding that the government had indeed carried its burden.
The court first observed—in accordance with the
government’s argument to the trial court—that N.L. had no
                    GODOY V. SPEARMAN                         17

personal knowledge of jury deliberations due to his role as an
alternate. Moreover, the court noted that although N.L.’s
declaration vaguely asserted that Juror 10’s communications
involved questions about “what was going on,” neither that
ambiguous assertion nor anything else in N.L.’s declaration
actually stated that “the ‘judge friend’ communicated
information prejudicial to” Godoy or the prosecution.
Finally, the court reasoned that, when read in the fairest light,
N.L.’s declaration suggested that any information furnished
by Juror 10’s “judge friend” related to “procedural matters,”
not Godoy’s guilt or innocence. On any plain reading of the
record, it cannot be said that the court misallocated the
burden to Godoy or unreasonably applied Supreme Court
precedent.

    In spite of the clear text of the Court of Appeal’s opinion,
Godoy argues that the court’s application of the presumption
of prejudice unreasonably applied Supreme Court precedent
because the court did not “take testimony.” The dissent
likewise argues that the state court’s decision was contrary to
Remmer because the government failed to introduce
additional “contrary evidence.” Dissent at 34. Those
arguments also fail. Neither Remmer nor any other case
requires that the government present testimony or any other
new evidence to rebut the presumption of prejudice created
by juror misconduct. Indeed, Remmer says only that the
government is required to “establish . . . that [the] contact
with the juror was harmless”—it says nothing about any
requirement that the government present affirmative evidence
to rebut the presumption. Remmer, 347 U.S. at 229; see also
Mattox, 146 U.S. at 150 (stating only that the presumption is
rebutted where the “harmlessness [of juror misconduct] is
made to appear”).
18                 GODOY V. SPEARMAN

    The dissent points to Remmer’s observation that the
“burden rests heavily on the Government” as clearly
establishing that the government must present evidence to
carry its burden. Dissent at 34. But Remmer does not compel
the dissent’s conclusion that this means the government
maintains a heavy burden to produce evidence to defeat the
defendant’s claim of juror misconduct. To the contrary, the
observation can quite reasonably be read to mean that the
government bears a burden to persuade the court that there
was no prejudice. Thus, if the court cannot determine the
nature of the alleged prejudice, the presumption means that
the tie goes to the defendant. But that does not mean that the
government can prevail only by ferreting out new evidence,
rather than (as was done here) by pointing to evidence already
within the existing record that contradicts the notion of
prejudice.

    In short, nothing in Remmer or elsewhere comes close to
establishing that the California Court of Appeal erred
“beyond any possibility for fairminded disagreement” in
concluding that the government had satisfied its burden on
the basis of the existing record. Harrington, 562 U.S. at 103.
The Court of Appeal did not unreasonably apply clearly
established federal law in concluding the presumption had
been rebutted.

                              3

    Godoy next argues that, even granting that the Court of
Appeal applied a presumption of prejudice consistent with
clearly established federal law, it nonetheless unreasonably
determined the facts because it “inexplicably” failed to
consider the additional evidence on direct appeal that Godoy
offered in his habeas petition, and instead merely
                    GODOY V. SPEARMAN                        19

“speculated” about the harmlessness of Juror 10’s alleged
misconduct. Again, we disagree.

    The Court of Appeal clearly stated that it limited its
discussion to N.L.’s declaration because this was “the only
evidence before the [trial] court.” See People v. Waidla,
996 P.2d 46 (Cal. 2000) (observing that “[a]ppellate
jurisdiction is limited to the four corners of the [underlying]
record on appeal” (quoting In re Carpenter, 889 P.2d 985,
992 (Cal. 2000))). Furthermore, even if the court were to
have considered the expanded record—which, incidentally,
it did when considering and rejecting Godoy’s habeas
petition—there would have been no difference in the result.
The only differences between the record before the California
Court of Appeal on direct review and on habeas review were
the declaration of alternate juror E.M. and supporting
declarations of trial and appellate counsel. Contrary to
Godoy’s assertion, however, this additional evidence adds
nothing to his claim.

    E.M.’s declaration contained the same allegations as
N.L.’s, stating in broad terms that “throughout the trial,”
Juror 10 communicated “about the case” with her “‘judge
friend’ up north.” Yet unlike N.L., E.M. also recounted the
specifics of several communications between Juror 10 and her
“judge friend.” According to E.M., “Juror 10’s judge friend
told her that she should write a note to give Judge Sheldon so
that she would be excused from jury duty. Juror 10 did write
a note which she gave to Judge Sheldon.” Similarly, E.M.
stated that when “jurors learned that Judge Sheldon had to
leave for a medical procedure[,] Juror 10’s judge friend told
her that if our trial judge had to be absent, that another judge
would take his place. That, in fact, occurred.” We fail to see
how the court’s decision constituted an unreasonable
20                  GODOY V. SPEARMAN

determination of the facts, especially when the additional
evidence highlighted by Godoy further bolsters the court’s
conclusion that such communications were not a source of
prejudice.

   Because the Court of Appeal did not act contrary to or
unreasonably apply clearly established federal law when
analyzing prejudice, Godoy is not entitled to relief on this
ground.

                              B

    Godoy next argues that the Court of Appeal unreasonably
applied clearly established federal law when it concluded that
the state trial court was within its discretion in refusing
Godoy’s request for an additional evidentiary hearing to
investigate his juror misconduct claim. Contrary to Godoy’s
assertions, however, neither Remmer nor Smith v. Phillips,
455 U.S. 209 (1982), clearly establish that Godoy was
entitled to any hearing beyond what he already received.

                              1

    As we have already explained, in Remmer the Supreme
Court found a criminal defendant’s right to an impartial jury
was violated where a trial court dismissed allegations of juror
misconduct after an ex parte meeting with prosecutors.
Remmer, 347 U.S. at 228–29. In that context, the Supreme
Court sensibly held that a trial court “should not decide and
take final action ex parte,” but instead should “determine the
circumstances, the impact thereof upon the juror, and whether
or not it was prejudicial, in a hearing with all interested
parties permitted to participate.” Id. at 229–30 (emphasis
added). We have observed elsewhere that such a holding
                    GODOY V. SPEARMAN                         21

“provides little prospective guidance as to when a hearing is
required or even appropriate.” Sims v. Rowland, 414 F.3d
1148, 1154 (9th Cir. 2005). Indeed, a “plausible reading
posits that the Remmer Court merely condemned the ex parte
manner in which the trial judge and the prosecutor handled
the situation without the knowledge of the defendant or his
counsel.” Id.

    In Smith v. Phillips, a defendant claimed that his
convictions for multiple counts of murder and attempted
murder should be vacated because a juror in his case had
submitted an application to work as an investigator in the
district attorney’s office. 455 U.S. at 212. Following the
verdict, the district attorney learned of the juror’s application
and informed the trial court and Smith’s attorney. Id. at 213.
At a post-trial hearing, the trial court heard testimony from
the juror and determined that although the letter of
application was an “indiscretion,” it did not improperly
influence the juror’s vote. Id. at 213–14. A federal district
court granted the defendant’s habeas petition and the Second
Circuit affirmed, holding that the failure of the prosecuting
attorneys to alert the court of the juror’s application when
they first learned of it violated due process. Id. at 214. The
Supreme Court reversed.

    Focusing its analysis on the adequacy of the hearing
conducted after the trial, the Court concluded that the trial
judge’s investigation of the allegations of juror misconduct
sufficiently protected the defendant’s due process rights. Id.
at 215–18 (“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.”). In so
holding, however, the Court declined to establish a rule
requiring a separate hearing whenever there are allegations of
22                  GODOY V. SPEARMAN

juror misconduct. Rather, the Court explained, “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 when they happen.” Id. at 217 (emphasis
added). The Court has recently reiterated this rule, stating
that a “suggestion of prejudice” should prompt courts to
“determine whether any juror has been directly tainted.”
Dietz v. Bouldin, 136 S. Ct. 1885, 1894 (2016).

    Notably absent from these cases is any strict requirement
to hold an evidentiary hearing in the course of the court’s
investigation into prejudice. As we have recognized,
“Remmer and Smith do not stand for the proposition that any
time evidence of juror bias comes to light, due process
requires the trial court to question the jurors alleged to have
bias.” Tracey v. Palmateer, 341 F.3d 1037, 1044 (9th Cir.
2003). Instead, we have concluded on several occasions that
Remmer and Smith leave trial courts with flexibility to
determine when an evidentiary hearing is appropriate.

    Our previous precedents illustrate the “flexible rule”
governing a court’s investigation of juror misconduct that
Remmer and Smith established. Id. at 1044. For instance, in
Tracey, a petitioner claimed the state court violated clearly
established federal law when it failed to question several
jurors who had told another juror before and after voir dire
that they “felt [the defendant] was guilty” and questioned
whether there was “any question in reference to the verdict.”
Id. at 1039. We held that the trial court’s decision not to
question these jurors was not contrary to Remmer or Smith,
because the court complied with Smith’s command to
“determine the effect of [prejudicial] occurrences when they
happen” by examining the statements and concluding that the
                    GODOY V. SPEARMAN                       23

“nature and timing of the bias” was insufficient to necessitate
further inquiry. Id. at 1044–45 (quoting Smith, 455 U.S. at
217 (alteration added)).

    Likewise, in Sims, we held that neither Remmer nor Smith
demand that a judge conduct a hearing sua sponte into
allegations of juror misconduct. 414 F.3d at 1155. In so
holding, we again concluded that “Smith and Remmer do not
stand for the proposition that a hearing is required in every
case of potential juror bias.” Id. We also noted that the
“flexible rule” evinced by Remmer and Smith reflects our
own circuit precedent that a court should “‘consider the
content of the allegations, the seriousness of the alleged
misconduct or bias, and the credibility of the source’ when
determining whether a hearing is required.” Id. at 1155
(quoting Tracey, 341 F.3d at 1044).

                              2

    In light of the Supreme Court’s precedents and our past
reading of them, we have little trouble concluding that the
Court of Appeal did not err “beyond any possibility for
fairminded disagreement” in ruling that no further hearing
was required.

     In its opinion, the California Court of Appeal noted that
the trial court possessed “discretion” over whether to hold an
evidentiary hearing, and that such a hearing “should be held
only where the defense has come forward with evidence
demonstrating a strong possibility that prejudicial misconduct
has occurred.” The Court of Appeal then concluded that the
trial court properly reasoned that such a showing was absent
in Godoy’s case, because N.L. was an alternate juror with no
personal knowledge of jury deliberations and because the
24                  GODOY V. SPEARMAN

alleged communications between the absent judge and Juror
10 “related to procedural matters rather than appellant’s
guilt.” We hardly think such a conclusion was unreasonable,
not least because the trial court’s actions clearly fell within
the “flexible” parameters the Supreme Court’s cases
demarcate. Tracey, 341 F.3d at 1044.

     Moreover, Godoy did have the opportunity to present
testimony in favor of his juror misconduct claim. Prior to the
first hearing on Godoy’s motion for a new trial, Godoy’s
lawyer stated that he would “present live witness testimony
or declarations from [the] jury panel at the time of the
hearing” about Juror 10’s misconduct. Yet Godoy’s counsel
failed to provide the prosecution any information on the
witnesses he planned to call despite a promise to do so. Nor
did he provide any declaration or other information to the
court stating what the content of his witness’s testimony
would be. He simply showed up at the hearing and insisted
that E.M. should be permitted to testify. After expressing
concern about the prosecutor’s lack of discovery and the
uncertain admissibility of E.M.’s testimony since he had “no
idea what [she] may testify to,” the trial judge decided not to
“hear testimony from [E.M.] today.” Instead, he ordered a
continuance and instructed Godoy’s counsel to provide the
names of any potential witnesses to the prosecutor “well in
advance” of the next hearing.

    Godoy’s counsel never provided a declaration from E.M.
Roughly one week before the rescheduled hearing, however,
he sent an affidavit from N.L. to the prosecutor and the court.
Yet on the day of the hearing, Godoy’s counsel admitted that
he was “not prepared” and that he had not brought N.L. to the
hearing because he assumed the court would grant his motion
for an additional continuance which he filed the day before.
                    GODOY V. SPEARMAN                          25

During the course of the conversation, the court repeatedly
asked Godoy whether he had “any other juror’s affidavit” in
addition to N.L.’s that he wished to submit. Godoy’s counsel
admitted he did not, but complained that the judge “refused
to allow the sworn testimony” of E.M. at the last hearing. In
response, the judge explained that under California law, he
was obligated to examine an affidavit of any juror to
determine whether the juror’s statements would be admissible
before he could consider their merits. Having examined
N.L.’s declaration, the trial judge then denied Godoy’s
motion for a new trial.

    There is little doubt that the trial court here did everything
required by Smith and Remmer to “determine the effect of
[prejudicial] occurrences when they happen.” Smith,
455 U.S. at 217 (alteration added). Indeed, the trial court
gave Godoy’s counsel not one but two chances to present
testimony from E.M., N.L., or any other juror. He failed to
take advantage of either opportunity. Moreover, the trial
court “consider[ed] the content of the allegations, the
seriousness of the alleged misconduct or bias, and the
credibility of the source” insofar as he reviewed N.L.’s
declaration and concluded no further inquiry was necessary.
United States v. Angulo, 4 F.3d 843, 847 (9th Cir. 1993). In
light of such facts, we can hardly conclude that the trial court
acted unreasonably, much less in a way that contravened
“clearly established Federal law.” 28 U.S.C. § 2254(d)(1).

    The dissent argues that the trial court transgressed clearly
established federal law when it concluded that Godoy was not
entitled to a separate evidentiary hearing because he failed to
demonstrate a “strong possibility” that prejudicial misconduct
occurred. Dissent at 42. But we fail to see how the court’s
application of this standard or any other makes any
26                      GODOY V. SPEARMAN

difference, since here the trial court undisputably
“determine[d] . . . whether or not [the communication] was
prejudicial, in a hearing with all interested parties permitted
to participate.” Remmer, 347 U.S. at 230. Moreover, we are
mystified by the dissent’s insistence that the trial court’s
investigation was not “reasonably calculated to resolve the
doubts raised about the juror’s impartiality.” Dissent at 48
(quoting Dyer v. Calderon, 151 F.3d 970, 974–75 (9th Cir.
1998) (en banc)). The trial judge held not one but two
hearings on Godoy’s allegations of juror misconduct,
reviewed the affidavit submitted by Godoy’s counsel, and
heard from the parties’ counsel before determining that there
was no prejudice. Likewise, the dissent’s assertion that the
trial court “showed no willingness to permit . . . live
testimony” is incredible. Dissent at 50. The trial court said
in no uncertain terms that it was ready to “hear testimony
from” E.M. but for the failure of Godoy’s counsel to comply
with basic rules of evidence, and surely would have done so
had Godoy’s counsel brought E.M. or N.L. to the second
hearing.3 We simply do not believe that Remmer, Smith, or
any other decision mandates additional hearings ad infinitum
because defense counsel fails to offer evidence he is invited

  3
     The dissent attempts to minimize the trial court’s concern over the
admissibility of N.L.’s testimony by pointing to a provision from the
California Evidence Code allowing for the introduction of “statements . . .
of such a character as is likely to have influenced the verdict improperly.”
Dissent at 50–51 n.10 (quoting Cal. Evid. Code § 1150). Yet this
provision highlights rather than undermines the trial court’s position, as
it specifically states that only “otherwise admissible evidence” concerning
juror misconduct may be considered. Cal. Evid. Code § 1150. Further,
California precedent cited by the trial court clearly states that section 1150
mandates that a court must “first determine whether the affidavits
supporting the motion [for a new trial] are admissible” before considering
a juror’s substantive testimony. People v. Perez, 4 Cal. App. 4th 893, 906
(1992).
                    GODOY V. SPEARMAN                         27

to present. As such, we decline Godoy’s invitation to review
his claim de novo or to overturn the denial of his habeas
petition on this ground.

                               IV

     Godoy lastly argues that he is entitled to habeas relief
despite the demanding requirements of § 2254(d) because the
trial court unreasonably denied his request for a third
continuance. Because Godoy’s argument misunderstands
Supreme Court precedent and fails to clear the high bar of
AEDPA, he is not entitled to relief on this ground.

    Trial courts have “broad discretion” in determining
whether continuances should be granted, and “only an
unreasoning and arbitrary ‘insistence upon expeditiousness in
the face of a justifiable request for delay’” is constitutionally
impermissible. Morris v. Slappy, 461 U.S. 1, 11–12 (1983)
(quoting Ungar v. Sarafite, 376 U.S. 575, 589 (1964)).
Further, even if a trial court abuses its discretion in denying
a continuance, a habeas petitioner must show actual prejudice
to obtain relief. See Brecht v. Abrahamson, 507 U.S. 619,
637 (1993). Here, the California Court of Appeal reasonably
concluded that, in light of the relevant circumstances, the trial
court did not abuse its discretion when it denied Godoy’s
motion for a continuance.

    The Supreme Court has explicitly stated that there are “no
mechanical tests” in deciding whether a denial of a
continuance violates due process. Ungar, 376 U.S. at 589.
Instead, “[t]he answer must be found in the circumstances
present in every case, particularly in the reasons presented to
the trial judge at the time the request is denied.” Id. Godoy
cites several Ninth Circuit cases to contend that we must
28                 GODOY V. SPEARMAN

balance certain specific factors in order to determine whether
a denial of continuance was fair and reasonable. But Ninth
Circuit cases are not “clearly established Federal law, as
determined by the Supreme Court of the United States,” and
thus their holdings do not establish any binding test for
AEDPA’s purposes. 28 U.S.C. § 2254(d)(1); see Glebe v.
Frost, 135 S. Ct. 429, 431 (2015).

    Moreover, circuit precedent cannot be used to “refine or
sharpen a general principle of Supreme Court jurisprudence
into a specific legal rule that this Court has not announced.”
Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013); Lopez,
135 S. Ct. at 2 (“We have emphasized, time and again, that
[AEDPA] prohibits the federal courts of appeals from relying
on their own precedent to conclude that a particular
constitutional principle is ‘clearly established.’”). The
Supreme Court’s command in Ungar that a denial of a
continuance must be assessed in light of “circumstances
present in every case” cannot be refined by Ninth Circuit
precedent into a specific review that looks only at certain
factors. Instead, the correct question is whether the
California Court of Appeal reasonably concluded that the trial
court did not abuse its broad discretion when it denied
Godoy’s continuance. In light of the circumstances and
reasons presented to the trial judge in this case, we find no
such error in the Court of Appeal’s decision.

     In his motion for a continuance, defense counsel’s sole
argument was that he was busy with a separate murder trial
and had no time to prepare a response to the prosecution’s
supplemental opposition to his motion for a new trial. The
trial judge summarily denied the motion based upon the fact
that there was “no legal cause stated.” Thereafter, the Court
of Appeal observed that Godoy’s counsel had failed to
                    GODOY V. SPEARMAN                        29

explain sufficiently “why he had been unable to review the
first supplemental opposition when he was not actually in
court.” It further noted that Godoy’s counsel was in trial for
ten hours and five minutes during the six days between the
date when he received the supplemental opposition and the
date when he filed his motion for a thirty-day continuance.
Likewise, the Court of Appeal remarked that Godoy’s
attorney did not indicate that either his case at trial or the
issues raised by the prosecutor’s supplemental opposition was
especially demanding or complex.

    Godoy argues that it is common knowledge that trial
attorneys must spend many hours out of court preparing for
in-court hearings and trials. He also claims that his attorney
could not divulge his particular reasons for being unable to
prepare for the motion without disclosing information
protected by work product or attorney-client privilege.
However, Godoy’s counsel never contended that detailing the
reasons for his inability to prepare for the hearing would
require him to divulge confidential information. See
Hernandez v. Holland, 750 F.3d 843, 859 (9th Cir. 2014)
(noting that although counsel requested a continuance due to
“conflicts” and “serious issues,” there was no basis to find
that denial of continuance was unreasonable since “counsel
did not state the nature of the conflicts or serious issues” and
did not request an ex parte hearing to “give some substance
to his conclusory claims” (internal quotations omitted)).
Additionally, the trial judge had already granted two
continuances prior to the denial of defense counsel’s June 28,
2006 motion, one at the request of Godoy’s lawyer and
another necessitated by his failure to disclose promised
30                      GODOY V. SPEARMAN

information to the prosecutor. Those continuances had
already delayed the sentencing date over two months.4

    In short, the trial judge had several reasons for denying
the motion for a continuance that were neither unreasonable
nor arbitrary. In light of the broad discretion accorded to trial
courts, a fairminded jurist could easily conclude that the state
Court of Appeal’s affirmance of the trial judge’s denial of
Godoy’s motion for a continuance was not unreasonable.

                                    V

   Because Godoy has failed to demonstrate that his claims
warrant federal habeas relief, the judgment of the district
court is

      AFFIRMED.




  4
    The trial judge indirectly referenced these continuances in his denial
of counsel’s motion for continuance, commenting “It’s been several
months since this conviction, and I’m going forward today.” Although the
Court of Appeal did not explicitly mention these continuances in its
decision, we think it evident that it considered them insofar as it observed
that to obtain a continuance counsel must demonstrate that he “prepared
for trial with due diligence.”
                    GODOY V. SPEARMAN                       31

FISHER, Circuit Judge, dissenting:

    When a sitting juror is alleged to have continuously texted
a judge friend about the trial and relayed the judge’s
information to the jury, the majority concludes the trial court
need not investigate further – and the jury verdict would not
violate due process. I disagree.

    Just recently, in an analogous context, the Supreme Court
reaffirmed that “the guarantee of an impartial jury is vital to
the fair administration of justice.” Dietz v. Bouldin, 136 S.
Ct. 1885, 1893 (2016). Because due process does not tolerate
“any ground of suspicion that the administration of justice has
been interfered with” by external influence, Mattox v. United
States, 146 U.S. 140, 149 (1892), a jury must “decide the case
solely on the evidence before it,” and the trial judge must
“determine the effect of [prejudicial] occurrences when they
happen,” Smith v. Phillips, 455 U.S. 209, 217 (1982). So
obvious are these principles that Dietz needed no citation to
conclude that, when there is even a “suggestion of prejudice,”
a court “should, of course, determine whether any juror has
been directly tainted.” 136 S. Ct. at 1894 (emphasis added).
Dietz took this requirement for granted despite no allegation
of extrinsic influence – only the possibility that a just-
dismissed jury had been tainted before it was recalled. See id.

   These bedrock principles are controlling here. Enrique
Godoy alleged that, during trial, one of the jurors was texting
a “Judge up North” about the case. Godoy presented a
declaration from alternate juror N.L., which stated Juror 10
“kept continuous communication” with the “judge friend”
32                      GODOY V. SPEARMAN

and relayed the judge’s responses to the jury.1 According to
N.L., throughout the trial:

         [J]uror number ten would communicate with
         her “judge friend” about the case [by text
         message]. When the jury was not sure what
         was going on or what procedurally would
         happen next, juror number ten would
         communicate with her friend and disclose to
         the jury what he said.2

Juror 10’s text messaging plainly was an “avenue[] for
potential prejudice” to the verdict, as Dietz warns. 136 S. Ct.
at 1895; see id. (“Prejudice can come through a whisper or a
byte.”). Her texting “about the case” reasonably could have
pertained to important procedural matters – such as why
certain evidence was excluded, or how the jury was to decide
the issue of guilt – that may have affected a juror’s views
about the case. Especially because such continuous
communications were relayed back to the jury, they were
“possibly prejudicial” and “ha[d] a tendency to . . . influence”
the verdict. Mattox, 146 U.S. at 150.


 1
    Godoy’s counsel also offered to present live testimony from alternate
juror E.M. on this claim, but the trial court granted the prosecution’s
request for a continuance and did not hear the testimony. In his state
habeas petition, Godoy subsequently submitted a declaration from E.M.
I assume the majority is correct that this second declaration is not part of
the record for purposes of our analysis. See Op. 19. Even based solely on
N.L.’s declaration, though, Godoy was clearly denied due process.
     2
      Although N.L.’s declaration stated Juror 10 was texting during
deliberations, as well, there is no indication how N.L. would have had
personal knowledge of that fact. My conclusion therefore rests only on
the fact that Juror 10 was texting about the case continuously during trial.
                    GODOY V. SPEARMAN                         33

    Two consequences clearly must follow under Supreme
Court authority.        First, the communications were
“presumptively prejudicial,” meaning “the burden rest[ed]
heavily upon the [state] to establish” they were, in fact,
“harmless.” Remmer v. United States (Remmer), 347 U.S.
227, 229 (1954). Second, Godoy was entitled to an
evidentiary hearing to investigate the issue of actual
prejudice. See Smith, 455 U.S. at 217 (“This Court has long
held that the remedy for allegations of juror partiality is a
hearing . . . .”). The California Court of Appeal’s decision,
however, was “contrary to” and “an unreasonable application
of” this clearly established law. 28 U.S.C. § 2254(d)(1).
Although correctly acknowledging N.L.’s declaration
established the presumption of prejudice, the state court
unreasonably concluded the same evidence rebutted it. The
state court also denied Godoy an evidentiary hearing under
the wrong legal rule, requiring him to demonstrate a “strong
possibility” of prejudice. I would therefore remand to the
district court for an evidentiary hearing and proper
application of Remmer’s presumption of prejudice.

    In upholding the state court’s denial of relief, the majority
permits a presumption in name alone and all but eliminates
Smith’s hearing requirement. The majority thereby distorts
the purpose of the Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA), needlessly creates conflicts with our
precedents and those of other circuits, and substantially
weakens the due process guarantee of a fair trial. I
respectfully dissent.

                               I

   Godoy argues the California Court of Appeal
unreasonably concluded the Remmer presumption “was
34                  GODOY V. SPEARMAN

rebutted” because N.L.’s declaration did not establish a
“substantial likelihood of juror bias.” I agree. Because the
prosecution had failed to introduce any contrary evidence, the
state court relied solely on Godoy’s evidence to determine the
issue of prejudice. In my view, it was an unreasonable
application of Remmer to conclude the same evidence both
established and rebutted the Remmer presumption. The
majority makes little attempt to defend the state court’s actual
reasoning, but instead goes out of its way to question whether
the presumption should have applied in the first place. That
discussion – which is irrelevant to our AEDPA analysis – is
dicta and contrary to binding precedent.

                               A

    The relevant clearly established law is straightforward.
The right to trial before an impartial jury “absolutely
forbid[s]” “[p]rivate communications, possibly prejudicial,
between jurors and third persons.” Mattox, 146 U.S. at 150.
“[A]ny” such extrinsic communications “about the matter
pending before the jury” are therefore “presumptively
prejudicial,” and “the burden rests heavily upon the [state] to
establish . . . that such contact with the juror was harmless.”
Remmer, 347 U.S. at 229 (citing Mattox, 146 U.S. at 148–50).
As the word “harmless” implies, the presumption is not
rebutted unless the state shows “the absence of prejudice,”
United States v. Olano, 507 U.S. 725, 741 (1993), meaning
“there is no reasonable possibility that the communication
will influence the verdict,” Caliendo v. Warden of Cal. Men’s
Colony, 365 F.3d 691, 697 (9th Cir. 2004) (observing that this
rule is clearly established).

   Although the California Court of Appeal correctly
acknowledged Juror 10’s misconduct “raise[d] a rebuttable
                       GODOY V. SPEARMAN                              35

presumption of prejudice,” it unreasonably concluded “[t]he
presumption of prejudice . . . was rebutted” based on the same
evidence.3 As a matter of common sense, N.L.’s declaration
could not simultaneously establish both possible prejudice
and the absence of prejudice. If there were any doubt,
Remmer itself made this point clear. Where the lower courts
had inferred from some of the defendant’s evidence that the
alleged offer to bribe a juror “had been made in jest,”
Remmer v. United States, 205 F.2d 277, 291 (9th Cir. 1953),
the Remmer Court reversed, stressing that, because a
presumption of prejudice attached to the facts alleged by the
defendant, “the burden rest[ed] heavily” on the government
to show the contact was, in fact, “harmless,” 347 U.S. at 229.
The Remmer presumption thus cannot be rebutted simply by
drawing contrary inferences from the very evidence
establishing the presumption. If it could, every showing that
a communication was “possibly prejudicial” would be
rebutted by the mere inference that the communication was
not prejudicial.

    The majority disagrees because, in its view, Remmer does
not clearly require the introduction of contrary evidence to
rebut the presumption. See Op. 17–18. But Remmer did not
need to spell out this requirement: it is intrinsic to the very
definition of a “presumption.” See Black’s Law Dictionary


   3
      The majority notes the California Court of Appeal applied the
presumption “under California law.” Op. 16. That was tantamount to a
conclusion the presumption applied under federal law as well. The
California Supreme Court has repeatedly derived the rebuttable
presumption from Remmer itself. See, e.g., In re Price, 247 P.3d 929, 938
(Cal. 2011); People v. Danks, 82 P.3d 1249, 1282 (Cal. 2004). And it has
held California’s “standard for determining prejudice resulting from juror
misconduct” is not “inconsistent with federal law.” People v. Loker,
188 P.3d 580, 622 (Cal. 2008).
36                  GODOY V. SPEARMAN

1304 (9th ed. 2009) (defining “presumption” as “calling for
a certain result . . . unless the adversely affected party
overcomes it with other evidence” (emphasis added)); id. at
1306 (defining “rebuttable presumption” as “[a]n inference”
that “may be overcome by the introduction of contrary
evidence” (emphasis added)). It is black-letter law that a
presumption cannot be rebutted where, as here, the opposing
party fails to introduce contrary evidence. See Tex. Dep’t of
Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981) (“[I]f [one
party] is silent in the face of the presumption, the court must
enter judgment for [the other party] because no issue of fact
remains in the case.”); Lincoln v. French, 105 U.S. 614, 617
(1881) (“Like other presumptions, it was sufficient to control
the decision of the court if no rebutting testimony was
produced.”). Tellingly, the majority points to no other
“presumption” that can be rebutted in this manner.

    Given the record here, no fairminded jurist could
conclude the state court actually presumed prejudice. The
only question the state court considered was whether Godoy’s
evidence established prejudice. The court thus faulted N.L.’s
declaration for indicating the text messages “related to
procedural matters” and failing to “suggest[] that the ‘judge
friend’ communicated information prejudicial to [Godoy].”
The majority assumes the state court presumed prejudice
because it used the magical words “presumption” and
“rebutted.” Op. 17. I do not think due process can be evaded
so easily. Cf. Mullane v. Cent. Hanover Bank & Trust Co.,
339 U.S. 306, 315 (1950) (“[P]rocess which is a mere gesture
is not due process.”). The state court applied a presumption
in name alone; that is not a reasonable application of
Remmer.
                    GODOY V. SPEARMAN                         37

    The majority also suggests the Remmer presumption is
merely a tie-breaker that applies when the court cannot
determine the nature of the alleged prejudice. Op. 18–19.
Even assuming this narrow view of the presumption is
reasonable, the state court’s decision was unreasonable
because it resolved a tie against Godoy. The state court
concluded, “[n]othing in [N.L.’s] declaration suggests that the
‘judge friend’ communicated information prejudicial to
[Godoy]” – even though it was unclear whether Juror 10’s
texting “about the case” included procedural matters that may
have affected a juror’s views about the case. Juror 10
reasonably could have been texting about, for example, why
certain evidence was excluded or how the jury was to
determine guilt. Because the state court could not determine
– either way – whether the text messages actually concerned
non-prejudicial matters, it could not resolve this ambiguity
against Godoy. The state court’s application of Remmer was
therefore unreasonable.

                               B

    The majority explains at length why it is “skeptical” that
Mattox and Remmer clearly established that Godoy was
“entitled . . . to a presumption of prejudice” at all. Op. 14–15.
Because the state court applied the presumption of prejudice,
however, that extended discussion is irrelevant to our
AEDPA analysis. See Frantz v. Hazey, 533 F.3d 724, 738
(9th Cir. 2008) (en banc) (“[I]f we were to defer to some
hypothetical alternative rationale when the state court’s
actual reasoning evidences a § 2254(d)(1) error, we would
distort the purpose of AEDPA.”). And because the majority
ultimately assumes the presumption applied, its discussion of
the issue is dicta. But even on its own terms, the majority is
wrong: the presumption clearly applied because Juror 10’s
38                  GODOY V. SPEARMAN

communications were “possibly prejudicial.” Mattox,
146 U.S. at 150. The majority’s attempt to walk back this
clearly established law needlessly creates conflicts with our
precedents.

                               1

    We have already held it is clearly established that
“[p]rejudice is presumed” where, as here, “[a] communication
is possibly prejudicial” in that “it raises a risk of influencing
the verdict.” Caliendo, 365 F.3d at 697. For good reason.
Even by the time of Mattox, it was “text-book[]” law that
“unauthorized communications having a tendency to adverse
influence” can be “fatal to verdicts.” 146 U.S. at 150. As
Mattox explained, “the jury should pass upon the case free
from external causes tending to disturb the exercise of
deliberate and unbiassed [sic] judgment.” Id. at 149. Mattox
thus established that “possibly prejudicial” private
communications “between jurors and third persons, or
witnesses, or the officer in charge . . . invalidate the verdict”
unless they are rebutted. Id. at 150. This was not a high bar:
Mattox made clear that “any . . . suspicion” of extrinsic
influence cannot be “tolerated.” 146 U.S. at 149 (emphasis
added).

    This rule was obvious in Remmer, too. There, the
Supreme Court needed no authority to conclude, “any private
communication . . . 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). Relying on Mattox, Remmer observed that the
presumption of prejudice “is not conclusive,” but the
government bears the “heav[y]” burden to establish “such
contact with the juror was harmless to the defendant.” Id.
                    GODOY V. SPEARMAN                        39

(citing Mattox, 146 U.S. at 148–50). The Court then applied
the presumption to a vague allegation of jury tampering even
though the record did not indicate “what actually transpired,
or whether the incidents that may have occurred were harmful
or harmless.” Id. Again, this was not a high bar: Remmer
reasoned that “[t]he integrity of jury proceedings” cannot be
tainted by any “unauthorized invasions.” Id.

    These authorities clearly establish that, to be
presumptively prejudicial, an extrinsic juror communication
need only “cross[] a low threshold to create the potential for
prejudice.” Caliendo, 365 F.3d at 697. Our own cases have
repeatedly recognized this “bright-line rule.” Tarango,
815 F.3d at 1221 (“Mattox established a bright-line rule: any
external contact with a juror is subject to a presumption that
the contact prejudiced the jury’s verdict . . . .”); Tong Xiong
v. Felker, 681 F.3d 1067, 1077 (9th Cir. 2012) (holding that
Mattox and Remmer “establish[] the widely accepted bright-
line rule that a finding of jury misconduct gives rise to a
presumption of prejudice”); Caliendo, 365 F.3d at 697 (“The
Mattox rule applies when an unauthorized communication
with a juror crosses a low threshold to create the potential for
prejudice.”).

    As explained above, Juror 10’s continuous texting about
the case was “possibly prejudicial” and had a “tendency to
adverse influence.” Mattox, 146 U.S. at 150. “[F]or obvious
reasons,” then, the communications were presumptively
prejudicial. Remmer, 347 U.S. at 229.
40                 GODOY V. SPEARMAN

                             2

    The majority asserts three reasons why the presumption
of prejudice might not have clearly applied here. Given our
binding precedent to the contrary, none is persuasive.

    First, relying on United States v. Dutkel, 192 F.3d 893,
895–86 (9th Cir. 1999), the majority contends Remmer
announced a “special rule” that applies only in the jury
tampering context. Op. 14–15. I disagree. Although
Remmer itself applies only to jury tampering, the presumption
of prejudice is not so limited. Dutkel recognized that other
types of juror misconduct were controlled by post-Remmer
cases, see 192 F.3d at 895 n.1, and we have since concluded
that subsequent Supreme Court authority “did not signal a
retreat from Mattox’ well-settled rule.” Caliendo, 365 F.3d
at 697 n.3. We have repeatedly held, accordingly, that
Mattox – not Remmer – clearly establishes the presumption
of prejudice with respect to extrinsic communications. See,
e.g., Tong Xiong, 681 F.3d at 1077–78; Caliendo, 365 F.3d at
697. Moreover, what is “special” about jury tampering is not
that it is presumptively prejudicial, but that a credible
allegation of tampering automatically gives rise to the
presumption, see Dutkel, 192 F.3d at 895, whereas for
extrinsic communications “the defendant must show that the
communication[s] could have influenced the verdict before
the burden of proof shifts to the prosecution,” Caliendo,
365 F.3d at 696. That distinction is immaterial here,
however, because Godoy satisfied this burden.

   Second, the majority tries to distinguish Mattox and
Remmer as involving communications concerning “the matter
pending before the jury.” Op. 14–15 (quoting Remmer, 347
U.S. at 229). We have already rejected this argument. See
                    GODOY V. SPEARMAN                        41

Caliendo, 365 F.3d at 697 (“Nothing in Mattox suggests that
for the rebuttable presumption to attach, the substance of the
extrinsic contact must factually relate to the trial.”).
Regardless, Juror 10’s continuous texting “about the case”
plainly pertained to the matter before the jury. Because the
text messages could have pertained to important procedural
matters, such as why certain evidence was excluded or how
the jury was to decide the issue of guilt, it is immaterial that
N.L.’s declaration did not also say explicitly that the texts
concerned Godoy’s guilt or innocence. The texts were
“possibly prejudicial” and hence presumptively prejudicial.
Mattox, 146 U.S. at 150.

    Third, the majority tries to limit Caliendo’s binding
interpretation of Mattox as applying only where a juror
communicates with a “witness” or “interested party.” Op.
14–15. In fact, we held in Caliendo that “[t]he Mattox Court
spoke in categorical terms, mandating that ‘possibly
prejudicial’ out-of-court communications between jurors and
outside parties” are presumptively prejudicial. 365 F.3d at
697 (emphasis added) (quoting Mattox, 146 U.S. at 150). Our
holding was sound: Mattox clearly established in the same
sentence that “possibly prejudicial” communications with
“witnesses” and with “third persons” (i.e., outside parties) are
presumptively prejudicial. 146 U.S. at 150.

    Because the presumption of prejudice clearly applied –
and was applied by the state court – the majority’s extensive
dicta are inconsistent with AEDPA, sow needless confusion
in the law and create multiple conflicts with our precedent.
42                  GODOY V. SPEARMAN

                               II

    At this point, having concluded the California Court of
Appeal unreasonably applied Remmer, we normally would
determine de novo whether there was actual prejudice. See,
e.g., Caliendo, 365 F.3d at 698. I would not do so here,
though, because the deficiencies in the state court’s analysis
arose from its failure to order an evidentiary hearing. I would
therefore grant Godoy’s alternative request for an evidentiary
hearing. As it turns out, that disposition is independently
warranted because the state court also denied Godoy an
evidentiary hearing under the wrong legal rule, and Godoy
plainly was entitled to some sort of hearing.

                               A

    The California Court of Appeal concluded Godoy was not
entitled to any evidentiary hearing because he had “failed to
demonstrate a ‘strong possibility that prejudicial misconduct
[had] occurred.’” That decision was contrary to clearly
established Supreme Court authority requiring an evidentiary
hearing whenever the alleged misconduct is potentially
prejudicial. The majority’s contrary view substantially
weakens due process and misconstrues our precedents.

                               1

    The Supreme Court “has long held that the remedy for
allegations of juror partiality is a hearing.” Smith v. Phillips,
455 U.S. 209, 215 (1982). Mattox observed that “possibly
prejudicial” extrinsic communications “invalidate the verdict,
at least unless their harmlessness is made to appear.”
146 U.S. at 150. Accordingly, when such a communication
occurs, a trial court must “determine . . . whether or not [the
                       GODOY V. SPEARMAN                              43

communication] was prejudicial, in a hearing with all
interested parties permitted to participate.” Remmer,
347 U.S. at 229–30 (emphasis added). This requirement is
commanded by due process, which imposes on trial courts “a
serious duty to determine the question of actual bias” when
juror misconduct is alleged. Dennis v. United States,
339 U.S. 162, 168, 171–72 (1950); see also Smith, 455 U.S.
at 217 (“Due process means . . . a trial judge ever watchful to
prevent prejudicial occurrences and to determine the effect of
such occurrences when they happen.”).4

     As the Supreme Court has explained, it is “manifest” that
a “full hearing” is required where – as here – the presumption
of prejudice attaches yet the prejudicial effect of the
communications, if any, is unclear from the record. Remmer
II, 350 U.S. at 379–80; see Tanner v. United States, 483 U.S.
107, 120 (1987) (“The Court’s holdings requir[e] an
evidentiary hearing where extrinsic influence or relationships
have tainted the deliberations . . . .”). We have concluded, as
well, a hearing is clearly required where “a potentially
prejudicial contact is alleged.” Tarango, 815 F.3d at 1224.
A trial court has flexibility to determine the form of the
hearing so long as the “investigation [is] reasonably
calculated to resolve the doubts raised about the juror’s
impartiality.” Dyer v. Calderon, 151 F.3d 970, 974–75 (9th
Cir. 1998) (en banc). But some kind of “hearing” is required.

 4
   Mattox, for example, required a trial court to admit and consider juror
affidavits concerning what effect a newspaper article had on the jury’s
deliberations because the article had a “tendency” to be “injurious to the
defendant.” 146 U.S. at 150–51. Similarly, Remmer required a “full
hearing” to determine the effect of alleged jury tampering because of the
“paucity of information relating to the entire situation” and the
presumption of prejudice that attached to the improper communications.
Remmer v. United States (Remmer II), 350 U.S. 377, 379–80 (1956).
44                  GODOY V. SPEARMAN

Tanner, 483 U.S. at 120; Smith, 455 U.S. at 215; Remmer II,
350 U.S. at 380; Remmer, 347 U.S. at 229; see also Tarango,
815 F.3d at 1224.

    The California Court of Appeal did not apply this
“potentially prejudicial” standard, but instead denied Godoy
an evidentiary hearing because he had failed to show a
“strong possibility” of prejudice. Although the state
contended at oral argument that California’s “strong
possibility” standard was identical to the federal standard, the
two cases the state cited dealt with a different standard –
namely, that required for proving actual prejudice. See
People v. Thomas, 269 P.3d 1109, 1147 (Cal. 2012); People
v. Loker, 188 P.3d 580, 622 (Cal. 2008). Neither case used
the phrase “strong possibility” or even considered when an
evidentiary hearing is required. In a similar context, we have
concluded that California’s “strong likelihood” standard is
contrary to federal law requiring only a “reasonable”
inference of a certain outcome. See, e.g., Wade v. Terhune,
202 F.3d 1190, 1197 (9th Cir. 2000) (“California courts in
following the ‘strong likelihood’ language of [California
precedent] are not applying the correct legal standard for a
prima facie case under Batson.”).

    I would reach the same conclusion here. Because the
state court denied Godoy an evidentiary hearing under the
wrong legal rule, its decision was contrary to clearly
established Supreme Court authority.

                               2

   In reasoning that Godoy was not clearly entitled to a
hearing, the majority all but eliminates the due process
guarantees that Smith and Remmer establish once the
                    GODOY V. SPEARMAN                        45

presumption arises, as here. In the majority’s view, Smith
and Remmer do not require a hearing at all – only that a trial
court determine the effect of the extrinsic communication.
See Op. 20–23. So long as the trial court considers the
defendant’s proffer of evidence of juror partiality and rules on
the motion for a new trial, it has provided all the process
Smith and Remmer require. See id. 25–27.

    This approach cannot be reconciled with Smith’s
command that the very “remedy” for such allegations is itself
“a hearing.” 455 U.S. at 215. There are two steps in the
process. A court first determines, based on the defendant’s
proffer, whether the communication is possibly prejudicial
such that the presumption attaches. If not, no further inquiry
is necessary. If the communication is possibly prejudicial, an
evidentiary hearing is warranted. See, e.g., Remmer II,
350 U.S. at 380. Only then, at step two, does the court
conduct the hearing required by Smith and Remmer. The
California Court of Appeal here focused only on step one,
unreasonably concluding that – although Godoy’s evidence
was sufficient to trigger the presumption of prejudice – he
was not entitled to an evidentiary hearing at step two. By
contrast, the majority collapses the two steps, reasoning that
the state court’s consideration of Godoy’s proffer at step one
was the hearing required by Smith and Remmer. By
eliminating any hearing at step two, notwithstanding the state
court’s initial presumption of prejudice, the majority ignores
the Supreme Court’s repeated instruction that a hearing is
required. See, e.g., Smith, 455 U.S. at 215; Remmer II,
350 U.S. at 380; Remmer, 347 U.S. at 229.

    The majority’s truncated approach rests on the mistaken
assumption that, because Remmer and Smith provide a
“flexible rule,” Tracey v. Palmateer, 341 F.3d 1037, 1044
46                     GODOY V. SPEARMAN

(9th Cir. 2003), neither decision ever clearly requires a
hearing. See Op. 22–23. We explained in Tracey, however,
that this “flexible rule” means only that a “hearing is not
mandated every time there is an allegation of jury misconduct
or bias.” 341 F.3d at 1044 (quoting United States v. Angulo,
4 F.3d 843, 847 (9th Cir. 1993)). Tracey expressly derived
this proposition from Angulo, where we clarified, “In cases in
which courts have not required an evidentiary hearing, the
facts have shown clearly that the alleged misconduct or bias
simply could not have affected the verdict.” 4 F.3d at 847 n.7
(emphasis added). Every case Tracey cited for this flexibility
likewise held that no hearing is required when there is no
reasonable possibility of prejudice and hence no presumption
of prejudice.5 In short, Remmer and Smith are flexible
enough that they do not require a hearing when an extrinsic
communication clearly could not have been prejudicial. But
their flexibility ends there.

    Neither Sims v. Rowland, 414 F.3d 1148 (9th Cir. 2005),
nor Tracey concluded a court can reasonably refuse to
conduct an evidentiary hearing once the presumption of
prejudice arises. On the contrary, Sims expressly recognized
that due process “forbids a trial judge from remaining idle in
the face of evidence indicating probable juror bias.” Id. at
1156. Because “Sims ha[d] alleged, at most, incidental and


   5
     See United States v. Hanley, 190 F.3d 1017, 1031 (9th Cir. 1999)
(holding no hearing was required where the alleged “vague statements did
not expose Defendants to unfair prejudice”); United States v. Langford,
802 F.2d 1176, 1180 (9th Cir. 1986) (holding no hearing was required
where the allegations were “insufficient to support a finding of a
reasonable possibility [of prejudice]”); United States v. Halbert, 712 F.2d
388, 389 (9th Cir. 1983) (holding no hearing was required where there was
“no reasonable possibility” of prejudice because the court “knew the exact
scope and nature” of the allegedly prejudicial information).
                        GODOY V. SPEARMAN                               47

unintentional juror influence” and had never requested an
evidentiary hearing, we had no occasion to consider whether
Smith and Remmer require an evidentiary hearing where the
defendant alleges potentially prejudicial juror misconduct.
Id. Similarly, the trial judge in Tracey actually conducted a
hearing in which a juror testified about allegedly biased
comments she had overheard from two other jurors. See
341 F.3d at 1039–40. We held that a “more elaborate
hearing” to question the two jurors was not required because
“[t]he allegations lacked specificity and noted a bias that,
even if true, was not caused by outside influences and
occurred before the presentation of evidence of the murder.”
Id. at 1045. Again, we simply did not consider whether a
hearing is required where the communication is potentially
prejudicial and hence presumptively prejudicial.

    The majority thus cites no authority – anywhere – for
denying a hearing when there is evidence of potentially
prejudicial extrinsic communications. In fact, the majority’s
holding conflicts with Tarango and at least four other
circuits.6 That the California Court of Appeal required a

 6
    Tarango, 815 F.3d at 1224 (“Once a potentially prejudicial contact is
alleged, the court should ‘determine the circumstances, the impact thereof
upon the juror, and whether or not it was prejudicial, in a hearing with all
interested parties permitted to participate.’” (emphasis added) (quoting
Remmer, 347 U.S. at 230)); See Barnes v. Joyner, 751 F.3d 229, 242 (4th
Cir. 2014) (“Remmer clearly established . . . a defendant’s entitlement to
an evidentiary hearing . . . when the defendant presents a credible
allegation of communications or contact between a third party and a juror
concerning the matter pending before the jury.”); Stouffer v. Trammell,
738 F.3d 1205, 1214 (10th Cir. 2013) (“The trial court’s duty to conduct
a Remmer hearing when genuine concerns of improper juror contact arise
is clearly established by the Supreme Court.”); Garcia v. Andrews, 488
F.3d 370, 375 (6th Cir. 2007) (observing the Supreme Court has
established “an evidentiary hearing . . . is required . . . where ‘extrinsic
48                      GODOY V. SPEARMAN

strong possibility of prejudice therefore stretches Remmer and
Smith beyond their breaking point.

                                    B

    In addition to weakening the guarantees of due process,
the majority distorts the purpose of AEDPA. Where the state
court unreasonably concluded Godoy was not entitled to any
evidentiary hearing, the majority upholds that decision
because, in its view, the trial court had already provided two
hearings and was not clearly required to provide another. See
Op. 25. That approach is “inconsistent with AEDPA
deference” because it ignores the California Court of
Appeal’s “actual reasoning,” Frantz, 533 F.3d at 738 – which
assumed there was no hearing at all.7 Regardless, the
majority’s approach is again erroneous on its own terms.

    Even on the majority’s assumption that Godoy received
a “hearing,” that “hearing” plainly did not comport with due
process because it was not “reasonably calculated to resolve
the doubts raised about the juror’s impartiality.” Dyer,
151 F.3d at 974–75. The trial court had the affidavit of


influence or relationships have tainted the deliberations’” (quoting Tanner,
483 U.S. at 120)); Willard v. Pearson, 823 F.2d 1141, 1148 (7th Cir.
1987) (“Due process requires . . . that the trial court hold a hearing to
determine if the potentially compromising situation has . . . actually
prejudiced the defendant.”).
     7
      The majority’s insistence that there were multiple “hearings” is
baffling. The trial court never heard live testimony; and it considered
N.L.’s declaration not at an “evidentiary hearing,” but as part of Godoy’s
initial offer of proof to support his motion for a new trial. Everyone –
including the prosecutor, the trial court and the California Court of Appeal
– agreed there was no “hearing.” Indeed, the very issue before the court
was whether a hearing was required.
                        GODOY V. SPEARMAN                                49

alternate juror N.L., but did not seek to question N.L. or Juror
10 about the texting. The trial court also was aware that
alternate juror E.M. wanted to testify – and even put her on
the stand to obtain her contact information – but did not seek
to question her either. Such questioning could have clarified
the content and frequency of the text messages, as well as the
extent to which they were communicated to the jury. But
because the trial court failed to conduct any such
investigation, it could not resolve doubts about the jurors’
impartiality. The trial court thus plainly failed to ascertain
“the circumstances, the impact thereof upon the juror” and
whether Juror 10’s texting was, in fact, prejudicial. Remmer,
347 U.S. at 230.

     The majority disagrees primarily because it thinks the
trial court “was ready to ‘hear testimony from’ E.M. but for
the failure of Godoy’s counsel to comply with basic rules of
evidence.” Op. 26. Not so. At the initial motions hearing,
the trial court repeatedly said it had not yet “ma[d]e a
decision whether we will hear testimony.”8 The issue the
court put over, then, was not E.M.’s actual testimony but
whether to hear that testimony. The trial court refused to
decide that issue until the prosecution could interview the
witness or receive the witness’ statement. As Godoy’s
counsel explained, he had not provided that information
sooner because he “didn’t have it.” Yet even after he
subsequently gave the prosecution a witness statement from
alternate juror N.L., and the prosecution had the opportunity


  8
    The trial court stated in no uncertain terms it “ha[d]n’t made a final
decision on” whether to hear live testimony; asked the prosecution if it
needed more time “before we decide whether we’re going to hear from
this witness”; and stressed it would give the prosecution “more time on . . .
whether we’re going to hear testimony from somebody today.”
50                      GODOY V. SPEARMAN

to interview alternate juror E.M.,9 the trial court still did not
invite Godoy to present live testimony, but told counsel – no
fewer than four times – he could “continue [his] argument.”

    The majority nevertheless assumes the trial court “surely
would have” heard the testimony “had Godoy’s counsel
brought E.M. or N.L. to the second [motions] hearing.” Op.
26. Wrong again. When defense counsel mentioned that the
court had refused to permit E.M. to testify, the trial court
asked, “I said where is your affidavit? . . . You didn’t give me
an affidavit.” Despite counsel’s objection that it was “rock
solid reversible error” not to hold an evidentiary hearing
under the circumstances, the trial court repeatedly insisted he
provide affidavits instead. Counsel observed, “[t]here is no
requirement that affidavits are the only way that misconduct
can be brought to the court’s attention,” and the court’s
“choos[ing] to do nothing about [E.M.]” was “reversible
error.” Yet the trial court persisted, permitting counsel only
to continue his argument “including [any] juror’s affidavit.”
The trial court showed no willingness to permit – let alone
invite or compel – live testimony.10


  9
    Godoy did not submit a witness statement from alternate juror E.M.
until he filed his state habeas petition.
  10
     Contrary to the majority’s assertion, the trial judge never expressed
any concerns about the admissibility of N.L.’s testimony. Cf. Op. 26 n.3.
Rather, the trial court was concerned that E.M.’s testimony might be
inadmissible because “[a] juror can’t impeach their verdict.” But
California law permits “any otherwise admissible evidence” – including
testimony – “as to statements made, or conduct, conditions, or events
occurring, either within or without the jury room, of such a character as is
likely to have influenced the verdict improperly.” Cal. Evid. Code § 1150
(West 2006) (emphasis added). Because the trial court gave no indication
it would permit testimony as to even these matters, its investigation could
                       GODOY V. SPEARMAN                              51

    At bottom, the majority fundamentally confuses a
defendant’s burden to establish potential prejudice – which
Godoy did – with the trial court’s independent duty to
investigate the actual impact on the jury and, where
necessary, compel testimony. Cf. Dyer, 151 F.3d at 978
(“Where juror misconduct or bias is credibly alleged, the trial
judge cannot wait for defense counsel to spoon feed him
every bit of information which would make out a case of
juror bias; rather, the judge has an independent responsibility
to satisfy himself that the allegation of bias is unfounded.”).
Because the trial court made no meaningful attempt to
investigate “the circumstances, the impact thereof upon the
juror, and whether or not [Juror 10’s texting] was
prejudicial,” Godoy was clearly deprived of due process.
Remmer, 347 U.S. at 230. I would therefore vacate the
judgment and remand for the evidentiary hearing to which
Godoy is entitled. See, e.g., Tarango, 815 F.3d at 1227.

                                  III

    I acknowledge the majority’s concerns that Godoy’s
counsel could have been prompter and better prepared. But
the unfortunate lawyering in this case provides no basis for
denying Godoy basic guarantees of due process. Dietz
reminds us that the inquiry here should have been simple:
Godoy raised a “suggestion of prejudice,” so “of course” the
state court should have “determine[d] whether any juror ha[d]
been directly tainted.” Dietz v. Bouldin, 136 S. Ct. 1885,
1894 (2016) (emphasis added). Instead of doing that, the
California Court of Appeal denied an evidentiary hearing
under the wrong legal rule, then unreasonably applied


not have reasonably ascertained the actual circumstances or impact of the
communications on the jury. See Remmer, 347 U.S. at 230.
52                GODOY V. SPEARMAN

Remmer in concluding the presumption of prejudice was
rebutted. By whitewashing those errors, the majority’s
opinion erodes the very protections Dietz – like its
predecessors – found “vital to the fair administration of
justice.” Id. at 1893. I respectfully dissent.
