                                RECOMMENDED FOR FULL-TEXT PUBLICATION
                                     Pursuant to Sixth Circuit Rule 206
                                              File Name: 07a0179p.06

                        UNITED STATES COURT OF APPEALS
                                         FOR THE SIXTH CIRCUIT
                                           _________________


                                                    X
                            Petitioner-Appellant, -
 ANGELA GARCIA,
                                                     -
                                                     -
                                                     -
                                                         No. 05-3856
           v.
                                                     ,
                                                      >
 PATRICIA ANDREWS, Warden,                           -
                            Respondent-Appellee. -
                                                     -
                                                     -
                                                    N
                     Appeal from the United States District Court
                    for the Northern District of Ohio at Cleveland.
                     No. 04-00612—Paul R. Matia, District Judge.
                                            Argued: April 24, 2007
                                     Decided and Filed: May 17, 2007
             Before: SILER and GILMAN, Circuit Judges; ZATKOFF, District Judge.*
                                              _________________
                                                   COUNSEL
ARGUED: David L. Doughten, Cleveland, Ohio, for Appellant. Elizabeth T. Scavo, OFFICE OF
THE OHIO ATTORNEY, Columbus, Ohio, for Appellee. ON BRIEF: David L. Doughten,
Cleveland, Ohio, for Appellant. Stephen P. Carney, Gene Crawford, OFFICE OF THE
ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
                                              _________________
                                                  OPINION
                                              _________________
        RONALD LEE GILMAN, Circuit Judge. Angela Garcia was convicted in an Ohio state
court of aggravated murder, aggravated arson, and insurance fraud in connection with the deaths of
her two young daughters as a result of a fire that she set in her home in order to collect insurance
proceeds. She was sentenced to life imprisonment with the possibility of parole after 20 years.
After exhausting her direct appeals in state court, Garcia petitioned for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254, raising seven assignments of error. The district court denied the
petition, but granted a Certificate of Appealability on the issue of whether the trial court’s failure


         *
         The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District of Michigan, sitting
by designation.


                                                          1
No. 05-3856           Garcia v. Andrews                                                         Page 2


to investigate Garcia’s allegations of juror misconduct warranted a new trial. For the reasons set
forth below, we AFFIRM the judgment of the district court.
                                        I. BACKGROUND
        Garcia was convicted in the Court of Common Pleas of Cuyahoga County, Ohio on charges
of (1) aggravated murder of a person under thirteen years old, in violation of Ohio Rev. Code
Ann.§ 2903.01(C); (2) aggravated murder, in violation of Ohio Rev. Code Ann. § 2903.01(A);
(3) murder, in violation of Ohio Rev. Code Ann. § 2903.02; (4) aggravated arson, in violation of
Ohio Rev. Code Ann. § 2909.02; and (5) insurance fraud, in violation of Ohio Rev. Code Ann.
§ 2913.47. After several of the counts were merged together for sentencing purposes, Garcia
received a sentence of life imprisonment with eligibility for parole after 20 years. The Ohio Court
of Appeals described the basic facts of the case as follows:
               On the evening of November 20, 1999, Garcia and her two daughters,
               Nyeemah, three years old, and Nijah, aged two, were at their home
               located on Harvard Avenue, Cleveland, Ohio. Before night’s end, the
               home was destroyed by fire, the two young girls dead from smoke
               inhalation, and Garcia the only survivor. Though the fire was
               initially ruled accidental by the Cleveland Fire Department, one
               month later that conclusion was changed to fire by arson after
               investigators conducted an in-depth investigation as to its cause and
               origin. The fire occurred on a Saturday and the remaining parts of
               the house were razed by the city on Monday, two days after the fire.
               Photographs of the scene, inside and outside the house, were taken
               either immediately after the fire had been extinguished or the next
               day, Sunday.
               In February 2000, Garcia was indicted for having intentionally set the
               fire in order to collect insurance proceeds and for causing the death
               of her children as part of that plan. At trial, Garcia maintained the
               fire was accidental and that she tried to save her girls, but could not
               because of the fire’s intensity.
         Garcia’s first trial ended in a mistrial after the jury found her guilty on the insurance-fraud
count but was unable to reach a verdict as to the remaining counts of the indictment. The Court of
Common Pleas held Garcia’s sentencing for the count of insurance fraud in abeyance until after her
retrial. Garcia’s second trial also ended in a mistrial because the jury could not reach a verdict on
the murder and arson counts. Her third trial commenced in late May of 2001. Jury deliberations
began on June 3, 2001. The next morning, the trial judge received the following note signed by jury
foreman William McGary, with two other jurors listed as “concurring”:
               Your Honor, because I work in the immediate area of the burnt out
               home I feel grave concern for me and my family’s personal safety.
               The family of the defendant owns property in the neighboring area
               and can easily identify me, especially since we are in the same
               business. The propensity for contact, (visual or physical,) is highly
               likely. It is my feeling as well as those of my fellow jurors, that I be
               removed from the jury.
        Although the letter states that Juror McGary was in the same business as the defendant’s
family, the record is devoid of any evidence that McGary knew Garcia or her family personally. A
second note was later delivered to the trial court in which the jurors requested a change in their
No. 05-3856           Garcia v. Andrews                                                          Page 3


foreman. After the trial court received the first note, it convened both the prosecution and defense
counsel in chambers to give each side an opportunity to respond to the note. The defense argued
that the foreman did not reveal during voir dire his knowledge of the defendant’s family or that he
was in the same business as the defendant’s family. Arguing that the jury had been tainted, defense
counsel asked for an immediate mistrial or, in the alternative, for the trial court to voir dire the jury
immediately to determine the existence and extent of any taint.
        The trial court denied the motion for a mistrial and the request for voir dire. Instead, it sent
a note to the jury instructing them that they must continue to deliberate. Defense counsel then
moved for the court to sequester the jury and conduct an immediate postverdict voir dire. The trial
court denied the motion after concluding that a postverdict voir dire is precluded under Ohio law.
A few minutes after the judge called counsel into chambers to announce the ruling on the postverdict
voir dire motion, the jury returned a verdict of guilty on the murder and arson counts.
        Garcia appealed her conviction, raising 11 assignments of error, including the one at issue.
The Ohio Court of Appeals affirmed Garcia’s conviction. Garcia appealed to the Ohio Supreme
Court, which dismissed her appeal as not involving a substantial constitutional question. Having
exhausted all of her direct appeals in state court, Garcia declined to pursue postconviction relief
within the state system and instead filed a petition in the federal district court for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. She raised seven claims for relief in her petition.
       The designated magistrate judge issued a Report and Recommendation in December of 2004,
concluding that Garcia should be granted habeas relief on her fourth claim of error, which Garcia
had described as follows:
                During deliberations, [a] juror brought to the court’s attention
                allegations of [a juror’s] misconduct. The trial court refused to
                inquire as to the nature of the misconduct and the extent to which the
                deliberations might have been contaminated. . . . The failure of the
                trial court to dismiss the juror, or in the alternative, to hold an
                evidentiary hearing was in violation of the Fifth, Sixth, and
                Fourteenth Amendments to the United States Constitution.
        Disagreeing with the magistrate judge’s Report and Recommendation, the district court
denied Garcia’s petition on all grounds. With respect to the juror-misconduct claim, the district
court concluded that because there was no evidence of any extraneous influence on or contact with
Juror McGary, the trial court’s refusal to grant a mistrial or conduct a voir dire to investigate
potential juror taint was not “contrary to clearly established federal law as established by the
Supreme Court.” The district court, however, issued a Certificate of Appealability as to this issue,
and this court denied Garcia’s motion to expand the Certificate. Garcia timely appealed.
                                           II. ANALYSIS
A.      Standard of review
        We review the legal basis for a district court’s dismissal of a habeas petition de novo. Davis
v. Coyle, 475 F.3d 761, 766 (6th Cir. 2007). The factual findings underlying the district court’s
analysis will not be set aside unless those findings are clearly erroneous. Id. Because Garcia filed
her petition for a writ of habeas corpus after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (AEDPA), that statute governs our review of this case. A writ of habeas
corpus may not be granted under AEDPA for any claim that was adjudicated on the merits in state
court unless the adjudication of that claim
No. 05-3856            Garcia v. Andrews                                                          Page 4


                (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)(1)-(2).
        In applying AEDPA, we look to the last state-court decision on the merits, which in this case
is the decision of the Ohio Court of Appeals. See Dyer v. Bowlen, 465 F.3d 280, 284 (6th Cir.
2006). The Dyer court further explained this court’s scope of review under AEDPA:
                A state-court decision is considered contrary to federal law if 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.
                ...
                The application of federal law is unreasonable where the state court
                identifies the correct governing legal principle from the Supreme
                Court’s decisions but unreasonably applies that principle to the facts
                of the prisoner’s case. When assessing unreasonableness, a federal
                habeas court may not issue the writ simply because it concludes in its
                independent judgment that the relevant state-court decision applied
                clearly established federal law erroneously or incorrectly. Rather,
                that application must also be unreasonable. Factual findings made by
                the state court, moreover, are presumed correct in the absence of
                clear and convincing evidence to the contrary.
Id. at 284 (quoting Williams v. Taylor, 529 U.S. 362, 413 (2000)) (brackets and quotation marks
omitted). If “a state court does not squarely address the claim but engages in what resembles the
proper constitutional analysis,” this court will similarly not issue the writ unless it determines “that
the state court decision was contrary to, or an unreasonable application of, federal law.” Dyer, 465
F.3d at 284.
B.      Failure to conduct a Remmer hearing
       Garcia argues that the state trial court’s failure to hold a hearing to investigate potential juror
misconduct violated her right to have her case decided by an impartial jury. She contends that in
refusing to hold a hearing, the trial court was trying to avoid a mistrial by not allowing Garcia the
opportunity to prove that her jury had been impermissibly tainted. With respect to this claim, the
Ohio Court of Appeals concluded as follows:
                On the record before us, there is nothing to indicate that the
                foreman’s or other jurors’ concerns about safety tainted their verdict.
                To the contrary, the verdict forms show that a verdict had already
                been reached before the jury replaced the foreman. Indeed, if the
                foreman’s vote was based on his personal concern for safety, then a
                vote of not guilty would be expected. That was not his vote,
                however. Absent evidence of an improper outside influence and
No. 05-3856           Garcia v. Andrews                                                       Page 5


               resulting bias, we do not find that Garcia was denied a fair trial.
               Garcia’s fourth assignment of error is overruled.
State v. Garcia, No. 79917, 2002 Ohio App. LEXIS 4362, at *30 (Ohio Ct. App. Aug. 15, 2002).
        The controlling case in this area of the law is Remmer v. United States, 347 U.S. 227 (1954).
In Remmer, the petitioner discovered after the jury had returned a guilty verdict that an unnamed
person had communicated with a juror during the trial and had “remarked to him that he could profit
by bringing in a verdict favorable to the petitioner.” 347 U.S. at 227. The juror who had been
contacted by this third party eventually became the jury foreman. After the juror reported the
incident to the judge, the judge informed the prosecutor and the Federal Bureau of Investigation
(FBI). The FBI investigated the incident and delivered its report to the judge. Neither the petitioner
nor his attorney were informed of the incident. They learned of it only through newspaper accounts
published after the jury’s verdict had been returned.
       The Supreme Court remanded the case to the district court “to hold a hearing to determine
whether the incident complained of was harmful to the petitioner, and if after [a] hearing it is found
to have been harmful, to grant a new trial.” Id. at 230. It also determined 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, if not made in pursuance of known rules
               of the court and the instructions and directions of the court made
               during the trial, with full knowledge of the parties.
Id. at 229. The Court held that this presumption is not conclusive, but that the government bears a
heavy burden to establish that any contact made with a juror “was harmless to the defendant.” Id.
        In a later case discussing the interplay between Rule 606(b) of the Federal Rules of Civil
Procedure and a defendant’s Sixth Amendment right to a fair trial, the Supreme Court reiterated that
an evidentiary hearing delving into allegations of juror misconduct is required only where “extrinsic
influence or relationships have tainted the deliberations.” Tanner v. United States, 483 U.S. 107,
120 (1987) (holding that a postverdict evidentiary hearing into allegations of drug and alcohol use
by jurors during the trial was not required under the Sixth Amendment because “juror intoxication
is not an ‘outside influence’ about which jurors may testify to impeach their verdict”). Rule 606(b)
“is grounded in the common-law rule against admission of jury testimony to impeach a verdict and
the exception for juror testimony relating to extraneous influences.” Id. at 121 (emphasis added).
       The Ohio Court of Appeals found that no evidence of extraneous influence was shown in the
present case, and therefore held that Garcia was not denied a fair trial. State v. Garcia, 2002 Ohio
App. LEXIS at *30. Garcia has not shown that this conclusion is contrary to or an unreasonable
application of clearly established federal law.
         The principal case upon which Garcia relies in support of her contention that a Remmer
hearing was required is Nevers v. Killinger, 169 F.3d 352 (6th Cir. 1999), a case that we find
inapposite. In Nevers, the defendants were two white Detroit police officers convicted of beating
an African-American suspect to death. Id. at 354-55. The case received heavy media coverage,
similar to the then-recent Rodney King beating in Los Angeles. Id. at 356. Near the end of the case,
the trial court provided the jury with several movies for entertainment, including Malcolm X, which
begins with footage of the Rodney King beating as well as a “racially provocative and highly
inflammatory speech by Malcolm X.” Id. The trial court denied the defendants’ motion for a
mistrial on the basis of the movie. Id.
No. 05-3856           Garcia v. Andrews                                                         Page 6


         After the guilty verdict was returned, the Nevers defendants presented several affidavits from
jurors contending that other extraneous information had reached the jury during the trial and
deliberations, including the allegation that the defendants had been involved in an undercover unit
with a reputation for harassing young black men. Id. at 357. A member of the jury had further
learned from news reports that the city was preparing for a potential riot in the event of an acquittal.
Id. at 369. This court held that Nevers and his codefendant were entitled to an evidentiary hearing
to have an opportunity to demonstrate “with specificity” that the jury was impermissibly tainted.
Id. at 374. “When a trial court is presented with evidence that an extrinsic influence has reached the
jury which has a reasonable potential for tainting that jury, due process requires that the trial court
take steps to determine what the effect of such extraneous information actually was on that jury.”
Id. at 373.
        No such extrinsic influence exists in the present case. Juror McGary’s note referenced his
own subjective fear based on the fact that he worked in the area where the Garcia family owned
property and that he was “in the same business.” The fact that two other jurors signed the note
indicates that McGary discussed his fear with the other jurors. There is no evidence in the record,
however, that there was any outside influence on any of the jurors at any point during either the trial
or jury deliberations.
        This court has defined “an extraneous influence on a juror [as] one derived from specific
knowledge about or a relationship with either the parties or their witnesses.” United States v.
Herndon, 156 F.3d 629, 635 (6th Cir. 1998). Examples of extraneous influence include “prior
business dealings with the defendant, applying to work for the local district attorney, conducting an
out of court experiment, and discussing the trial with an employee.” United States v. Owens, 426
F.3d 800, 805 (6th Cir. 2005) (denying postconviction relief from a federal conviction for bank
robbery where the petitioner argued that Owens was entitled to a Remmer hearing because one of
the jurors passed a note to the judge expressing the juror’s discomfort with Owens for “staring at
her”) (citation and quotation marks omitted). None of the examples set forth in Owens are
analogous to a juror simply expressing his subjective fear as in the present case.
        Another case cited by Garcia, United States v. Davis, 177 F.3d 552 (6th Cir. 1999), is also
distinguishable despite some surface similarities. As in the present case, one of the Davis jurors
(Juror Estes) sent a note to the judge asking to be excused from further service. Id. at 556.
Moreover, Juror Estes based his fear in part on the fact that he lived in the same area as the
defendants and had “operated a used car business that catered to individuals in a section of town
heavily populated by minority citizens.” Id. But the juror’s fear in Davis was primarily based on
the fact that he had previously done business with some of the defendants, and that he had heard
from one of his employees during the course of the trial “that members of the community were
already aware of Estes’s jury service and were discussing his role in the proceedings.” Id. This
court remanded for a Remmer hearing, reasoning as follows:
               Given the fact that Estes was clearly motivated by fear of retaliation
               from the defendants, their families, and their acquaintances, the fact
               that the information that prompted the fear was provided by an
               extraneous source, and the fact that a number of jury members
               openly agreed that a person in Estes’s predicament should seek to be
               removed from the panel, such further inquiry seems not only
               appropriate, but necessary to ensure the impartiality of the jury.
Id. at 557 (emphasis added).
       The extraneous contact from the juror’s employee in Davis is what distinguishes that case
from the one before us. To be sure, the jurors here should not have been discussing Juror McGary’s
No. 05-3856          Garcia v. Andrews                                                       Page 7


subjective fear of reprisal even in the absence of an extraneous source, but the potential harm to
Garcia is too attenuated to warrant habeas relief. This is especially so because, as the Ohio Court
of Appeals recognized, one would have expected a vote of not guilty if Juror McGary was concerned
about his personal safety. The fact that Juror McGary and all of the other jurors instead voted to
convict Garcia indicates the lack of a due process violation.
        Moreover, how we would apply our own Sixth Circuit precedents does not guide the analysis
in the present case. See Carroll v. Renico, 475 F.3d 708, 712 n.3 (6th Cir. 2007) (“Thus, while this
Circuit in direct appeals may require more stringent procedures, United States Supreme Court
precedent guides our review of state habeas petitions.”). We find no Supreme Court precedent that
requires a Remmer hearing on the facts before us. The Ohio Court of Appeals, therefore, did not
engage in an unreasonable application of clearly established federal law as determined by the
Supreme Court or reach a result contrary to that law. See Dyer v. Bowlen, 465 F.3d 280, 284 (6th
Cir. 2006).
                                      III. CONCLUSION
       For all of the reasons set forth above, we AFFIRM the judgment of the district court.
