                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

ANTHONY BERNARD SMITH, Jr.,          
              Petitioner-Appellee,         No. 07-16875
               v.                           D.C. No.
                                           CV-03-01871-
B. CURRY; BILL LOCKYER,                     LKK/KJM
          Respondents-Appellants.
                                     

ANTHONY BERNARD SMITH, Jr.,               No. 07-16876
             Petitioner-Appellant,           D.C. No.
               v.                         CV-03-01871-
B. CURRY; BILL LOCKYER,                     LKK/KJM
           Respondents-Appellees.
                                           OPINION

       Appeal from the United States District Court
          for the Eastern District of California
      Lawrence K. Karlton, District Judge, Presiding

                Argued and Submitted
      December 10, 2008—San Francisco, California

                 Filed September 8, 2009

    Before: Mary M. Schroeder, Marsha S. Berzon and
             N. Randy Smith, Circuit Judges.

                Opinion by Judge Schroeder;
Partial Concurrence and Partial Dissent by Judge N.R. Smith




                          12563
12566                 SMITH v. CURRY




                       COUNSEL

David M. Porter, FD, Sacramento, California, for petition-
er/appellee/appellant, Anthony Bernard Smith, Jr.

David A. Eldridge, DOJ, Sacramento, California, for respon-
dents/appellants/appellees, B. Curry and Bill Lockyer.
                        SMITH v. CURRY                     12567
                          OPINION

SCHROEDER, Circuit Judge:

   Supreme Court precedent spanning more than a century
permits a trial judge to instruct a deadlocked jury about its
duty to deliberate, but bars the judge from trying to force or
coerce a verdict. See Allen v. United States, 164 U.S. 492
(1896); Lowenfield v. Phelps, 484 U.S. 231 (1988); Early v.
Packer, 537 U.S. 3 (2002) (per curiam). The district court in
this case granted the writ of habeas corpus, because the dis-
trict court concluded the state trial court violated that rule
when the trial judge, having learned who the holdout juror
was and the specific evidence that was troubling that juror,
instructed the jury to focus on particular evidence supporting
conviction. We reach the same conclusion as the district
court, and we affirm the grant of habeas relief. We hold that
the Court of Appeal’s decision upholding the instruction was
an unreasonable application of established Supreme Court
law.

   The petitioner, Anthony Smith, was convicted in Superior
Court of Sacramento County, California, of burglarizing the
home of an aging couple, robbing them, and forcing oral cop-
ulation on the wife. Smith’s co-defendant James Hinex was
charged with burglary and robbery, but not with the oral cop-
ulation count. Smith received a determinate term of twenty
years followed by a term of twenty-five years to life.

   Evidence at trial included DNA evidence implicating
Smith. Smith attempted to discredit this evidence through an
expert witness. Other key evidence included the post-arrest
statements Smith and Hinex voluntarily gave to the investigat-
ing officer after waiving their Miranda rights.

   On the third day of deliberations, the jury first informed the
trial judge it could not reach a verdict on the oral copulation
charge. When the jury returned deadlocked a second time, the
12568                    SMITH v. CURRY
court gave a change modeled after an “Allen charge.” On the
fifth day, one of the jurors wrote a note to the judge, explain-
ing he thought the DNA evidence was tainted. The court then,
over defense counsel’s strenuous objection of coercion,
instructed the jury to look at the “consistencies and inconsis-
tencies” between Smith’s and Hinex’s post arrest statements
to the police. The court went on to summarize the statements,
and to explain what, in the court’s view, were the key portions
of those statements the jury should consider. The court made
no reference to other relevant evidence bearing on the signifi-
cance of the consistencies and inconsistencies. The jury
returned a guilty verdict against Smith on the copulation
charge approximately an hour later.

   The California Court of Appeal affirmed the conviction,
and the California Supreme Court denied review. Smith filed
his first federal habeas petition pro se in 2003, and the district
court subsequently appointed counsel. The district court
granted relief on the jury coercion claim, but denied relief on
Smith’s other claims. The state appeals the judgment granting
the petition on the jury coercion claim, and Smith cross-
appeals the court’s denial of his other claims. We affirm in all
respects.

                       BACKGROUND

   The following factual summary of the evidence supporting
the verdict is adapted from the opinion of the state appellate
court. The victims, Eugene and Deanna S, aged 71 and 56 at
the time of trial, lived in Sacramento, California in September
1997, when they visited Reno and won $4,000 gambling. On
Saturday, September 6, 1997, the evening of their return, Mrs.
S told a former co-worker, Robert McKinsey, of the couple’s
winnings.

  The next afternoon, Sunday, September 7, Mr. S was
watching television in the couple’s living room. Mrs. S was
in the bedroom after washing her hair. When the doorbell
                        SMITH v. CURRY                   12569
rang, Mr. S opened the front door and saw petitioner Smith,
a tall African-American man in a black t-shirt, standing with
a folded newspaper. Smith told Mr. S he was soliciting sub-
scriptions, but Mr. S said he was not interested and returned
to his couch, leaving the screen door unlocked. Smith fol-
lowed Mr. S into the house and held a gun to his head, asking
where the money was. When Mr. S denied having any money,
Smith hit him with his hand and with the gun, and ordered
Mr. S to hand over the money.

   Seconds later, another African-American male, co-
defendant Hinex, entered the house and also demanded
money. After Smith threatened to shoot, Mr. S handed over
his wallet to Hinex, who took out $8 and pocketed the bills.

   Smith then asked Mr. S if his wife was home. Mr. S
responded that she might be in the shower or next door, and
Smith went to look for her in the bedroom. When Mrs. S
heard him coming, she called 911 and hid beside the bed.
Smith entered the bedroom and went through the closet and
drawers. When he saw Mrs. S, he ordered her to get up. As
she stood up from her hiding place, Smith slapped and kicked
her and asked if she had called the police. Mrs. S responded
that she hadn’t had time. Smith then ordered her to take off
her clothes, threatening to shoot her if she did not comply.
Removing her t-shirt and holding it against herself, Mrs. S
told Smith that she had $100 in her wallet. He ordered her to
surrender it. Then, putting the gun to her head, Smith forced
oral copulation. When he finished, Mrs. S spit the ejaculation
from her mouth onto the carpet. At the sound of police sirens,
Smith left the room, threatening to come back and kill her.

   Meanwhile, in the living room, Hinex menaced Mr. S with
a steak knife, took his checkbook and electronic organizer,
and then grabbed and dragged him down the hall to the bed-
room, where Smith was pulling up his pants after hearing the
police sirens. Smith and Hinex then ran out the front door as
the first police officer, Officer Johnson, arrived. Johnson was
12570                   SMITH v. CURRY
unable to catch Smith and Hinex, but other officers found
Hinex in a yard a few houses down the street. Hinex was
immediately arrested and identified by the Ss as the perpetra-
tor in the oral copulation incident.

   Detective Willover interviewed Hinex, who named Smith
as a participant in the robbery and as the one who had forced
oral copulation by Mrs. S. In interviews the next day, Mrs. S
tentatively identified Smith from a photo lineup and told
Detective Willover about the ejaculate she spit on the carpet.
When Detective Willover interviewed Smith on September
12, the day of his arrest, Smith admitted taking part in the bur-
glary, but denied any sexual assault.

   Testing of blood, saliva and semen samples of the defen-
dants and the victim excluded Hinex and Mr. S as the donor
of the semen on Mrs. S’s t-shirt and on the carpet, but did not
exclude Smith. DNA testing of the semen and saliva samples
from the T-shirt and carpet led the criminologist conducting
the testing to conclude that of the three males involved in the
case, namely Hinex, Mr. S and Smith, the semen could have
come only from Smith. The criminologist relied on statistical
methods to calculate that one out of every 1,450 African-
Americans, one out of every 19,500 Caucasians, and one out
of every 17,500 Latinos would have the same combination of
genetic traits found in Smith’s DNA and in the sperm sample.

   Smith presented testimony at trial from an expert on DNA
testing, Dr. Mueller, who called into question the validity of
the testing techniques used to link Smith to the semen sam-
ples. Dr. Mueller criticized the criminologist’s statistical
methods and stated that crime labs can produce false positives
in DNA tests. Dr. Mueller conceded, however, that the
National Academy of Sciences had approved the testing and
calculating methods used by the criminologist.

  Before trial, a substantial amount of additional evidence
regarding the DNA testing methods was presented to the court
                         SMITH v. CURRY                     12571
during a hearing on Smith’s Kelly-Frye motion to suppress
the criminologist’s testing results. See People v. Kelly, 549
P.2d 1240 (Cal. 1976); Frye v. United States, 293 F.3d 1013
(D.C. Cir. 1923). The jury did not hear that evidence, for it
underlay the trial court’s decision to admit the DNA evidence
incriminating Smith.

   Hinex testified at trial that he, Smith and their friends “JB”
and Chris McCurin had driven to the S residence on Septem-
ber 7 after McKinsey told them about the Ss’ gambling win-
nings. According to Hinex’s trial testimony, McCurin and
Smith entered the house, and Hinex saw them through a win-
dow holding a man at gunpoint and asking where the money
was. Hinex stated that Smith and McCurin then rushed out of
the house at the sound of sirens. Hinex was impeached at trial
with the inconsistent story he initially told police, in which he
had said he and Smith entered the house, and Smith went to
the bedroom and forced oral copulation by Mrs. S.

   Smith did not testify at trial. In his statement to police offi-
cers, Smith admitted taking part in the burglary and robberies,
but denied sexually assaulting Mrs. S. He stated that after he
and Hinex entered the house, they went to Mrs. S’s bedroom
together, and that Hinex later took Mrs. S to another room. At
trial, the prosecution played for the jury both Hinex’s and
Smith’s taped interviews with Detective Willover.

   The jury began deliberations on September 17, 1998. On
the third day of deliberation, September 25, it returned guilty
verdicts on the first three counts, burglary and two counts of
robbery, but was not able to reach a verdict on Count 4, oral
copulation. The court asked if there was any hope that further
deliberation might result in a verdict, and, after receiving a
positive response, sent the jury back to deliberate.

   At the end of the day, the jury still had not reached a ver-
dict. The foreperson told the court that one of the jurors
wanted to communicate to the judge. The judge said he did
12572                   SMITH v. CURRY
not want to hear about the jurors’ “thought processes.” The
next day, the juror in question, Juror 10, sent a letter to the
court stating the following:

    I am unable to vote for a guilty verdict on charge No.
    4. My reasons are as follows: I am of the opinion
    that the methods used in collecting the evidence
    from which the sole sperm sample (purple shirt) was
    lifted may have contaminated the evidence because
    of time lapse and handling procedure. Further, I can
    not come to the absolute conclusion that the pro-
    cesses and procedures utilized at arriving at the DNA
    match have proven to be infallible as the only indica-
    tion of Mr. Smith[‘s] guilt on this charge.

    For me the choices are:

         1.   Was Mrs. S[ ]’s unreliable identifica-
              tion of her attacker credible?

         2.   Did Mr. Smith, according to his state-
              ment, admit to the other three charges
              and only deny the fourth?

         3.   Are the Sacramento County Crime
              Lab’s findings based on the DNA
              match the only credible evidence on
              this charge?

    Unfortunately, for me, that is not one absolute con-
    clusion on this charge. Therefore, I have a reason-
    able doubt and in good conscience cannot vote for
    conviction.

  The court then gave the jury an Allen-type instruction, over
defense counsel’s objection on the ground that the instruction
would have coercive effect in light of the court’s knowledge
                        SMITH v. CURRY                     12573
of a juror’s thought process. The following is the relevant por-
tion of that trial court instruction:

    To assist you in your further deliberations and to
    address the concerns expressed in [Juror 10’s] com-
    munication, I am willing to further instruct you in
    this case as follows.

    Your goal as jurors should be to reach a fair and
    impartial verdict based solely on the evidence pre-
    sented and without regard for the consequences of
    your verdict regardless of how long it takes to do so.
    What your duty as jurors is to carefully consider,
    weigh and evaluate all of the evidence presented at
    the trial, to discuss your views regarding that evi-
    dence and to listen to and consider the views of your
    fellow jurors.

    In the course of your further deliberations, you
    should not hesitate to reexamine your own views or
    to request your fellow jurors to reexamine their
    views. You should not hesitate to change your view
    once held if you are convinced it is wrong or to sug-
    gest other jurors change their views if you are con-
    vinced they are wrong. Fair and effective jury
    deliberations require a frank and forthright exchange
    of views.

    As I previously . . . instructed you, each of you must
    decide the case for yourself, and you should do so
    only after a full and complete consideration of all of
    the evidence with your fellow jurors. It is your duty
    as jurors to deliberate with the goal of arriving at a
    verdict on the charge if you can do so without vio-
    lence to your individual judgment.

   The jury returned to the jury room, but later sent a note that
it was still unable to reach agreement. It was at that point that
12574                   SMITH v. CURRY
the judge decided to comment on the evidence to the jury,
giving the instruction that is the centerpiece of this appeal.
The instruction focused on the “consistencies and inconsisten-
cies” in Hinex’s and Smith’s statements to Detective Wil-
lover. Those statements were inconsistent as to whether Hinex
went in the house, but were consistent that Smith did go in.
The defense objected to the instruction. Defense counsel
expressed respect for the judge, but stated she was persuaded
that on this occasion, the judge was improperly commenting
on particular evidence, due to his belief that Smith was guilty
on the copulation charge. Counsel objected specifically to the
judge’s commenting on the evidence supporting conviction in
light of the juror’s expressed doubts about the DNA evidence.
Counsel pointed out that the judge had heard a lot of back-
ground on the DNA evidence in the pretrial Kelly-Frye hear-
ing from which the jury was excluded:

    I’d like to say that I make these comments with great
    discomfort because of my tremendous respect for
    this Court. I’ve had numerous dealings with this
    Court as my home court judge for a couple of years
    and . . . I have been impressed with the Court’s com-
    petence, intellectual honesty and careful, cautious
    consideration of legal issues.

    . . . . I want to point out that the Court, I believe, has
    a sincerely held belief in the defendant’s guilt. It is
    very clear that that’s true. And I submit that the
    Court is letting that affect its discretion in this mat-
    ter, and I need to point out that the Court has heard
    a tremendous amount of evidence with respect to the
    serology and DNA, specifically, that the jury has not
    heard.

    . . . . So I would request the Court to consider
    whether its belief in the defendant’s guilt is based in
    part on evidence that is not — that has not been pre-
    sented by the prosecutor in this case.
                       SMITH v. CURRY                    12575
    . . . . [T]he reason it is so obviously so devastating
    is because the jury considers the judge the most
    intelligent lawyer in the courtroom, certainly it is
    clear in this case they do.

  After denying defense counsel’s motion for a mistrial, the
court instructed the jury as follows:

    Ladies and gentlemen, in reviewing the ten commu-
    nications you have sent to the Court since you began
    your deliberations on September 18th, 1998, it
    appears to the Court that the question as to who actu-
    ally perpetrated forcible oral copulation upon [Mrs.
    S] is a matter of controversy among you.

    You are, of course, the exclusive judges of the facts,
    and it is your duty, if you can, to arrive at a verdict
    one way or another. To that end, I am going to exer-
    cise the priviledge [sic] that I have under the laws of
    the state to comment on the evidence, not to impose
    my will on you in any way, but simply to have you
    review certain evidence you may not have consid-
    ered or discussed during your deliberations.

    In my view, it is important that you consider the
    statements defendant Anthony Smith and James
    Hinex made to law enforcement following their
    arrests.

    Accordingly, after I have completed my comments,
    I am going to have those statements played in open
    court. As you listen to their statements, you should
    read the transcript which you have been provided
    with that corresponds to the statement you’re listen-
    ing to. When listening to their statements, you
    should compare their statements against each other.
    You should listen for consistencies in there [sic]
    statements as well as inconsistencies. Consistencies
12576                   SMITH v. CURRY
    in statements and inconsistencies in statements are
    proper areas to consider in evaluating evidence.

    Among the consistencies and inconsistencies you
    will hear in James Hinex’ statements to Detective
    Willover, Hinex tells Willover that he and Smith
    went up to the front door of the S[ ] home. Hinex
    said Smith pretended to sell the newspaper. Hinex
    said Smith went inside the house. Hinex denied
    going inside the house.

    In Hinex’ statements to Detective Willover and
    Detective Ware, Hinex said that Smith was the guy
    who went into the house. Hinex said Christopher
    [McCurin] was not at the house when the incident
    occurred. Hinex denied going into the house.

    Hinex said Smith went to the back of the house with
    a gun and closed the door. Hinex said Smith was the
    only one who ran out of the house. In Smith’s state-
    ment to Detective Willover, he told Willover he and
    Hinex went in the front door with a gun. Smith told
    Willover he and Hinex went to the house and Chris
    stayed in Rob [McKinsey]’s house. Smith told Wil-
    lover Chris did not go in the house.

    Smith said he and Hinex went inside the house.
    Smith said that he found Ms. S[ ] in one of the back
    bedrooms. Smith said he had the gun when he was
    back there with Mrs. S[ ]. Smith said that Mrs. S[ ]
    gave him a $100 bill.

    There are other consistencies and inconsistencies
    you will hear in their statements, but these are the
    most significant in my view.

The court then played the tapes of Hinex’s and Smith’s state-
ments to detectives. After the tapes were played, the court fur-
ther instructed:
                         SMITH v. CURRY                    12577
    After making a comparison of the statement of
    Anthony Smith and James Hinex to law enforce-
    ment, consider and discuss how this comparison
    affects your finding as to who perpetrated the act of
    forcible oral copulation upon [Mrs. S].

    My comments are advisory only and are not binding
    on you as you are the exclusive judges of the ques-
    tions of fact submitted to you and of the credibility
    of the witnesses.

    I also remind you again that both the People and the
    defendant are entitled to the individual opinion of
    each juror. It is the duty of each of you to consider
    the evidence for the purpose of arriving at a verdict
    if you can do so. Each of you must decide the case
    for yourself but should do so only after a discussion
    of the evidence and instructions with the other
    jurors.

    You should not hesitate to change an opinion if you
    are convinced it is erroneous; however, you should
    not be influenced to decide any question in a particu-
    lar way because the majority of the jurors or any of
    them favor such a decision.

    And when you are discussing and deliberating,
    remember, too, you are not partisans or advocates in
    this matter, but you are judges.

   The jury deliberations at that point were apparently suffi-
ciently unpleasant that, as the jury left for lunch after receiv-
ing the last instruction, one of the other jurors, Juror 9, handed
the bailiff a note saying she was frustrated with the delibera-
tions and wished to be excused for the rest of the day. The
court had the bailiff tell the juror she should come back to
deliberate after lunch. The court informed counsel of the inci-
12578                   SMITH v. CURRY
dent while the jury was deliberating. Defense counsel made
no objection to the court’s communication with Juror 9.

   Soon after lunch, the jury returned a guilty verdict against
Smith on Count 4, the oral copulation count. Smith filed an
unsuccessful motion for a new trial, on the basis of both the
judge’s comments on the evidence to the jury, to which there
had been a strenuous objection, and the handling of Juror 9’s
letter, to which there had been no objection.

    In his direct appeal, Smith challenged the comments on the
evidence, urging that in the context of the judge’s knowledge
of Juror 10’s doubt about the DNA evidence, the judge’s
comments highlighting other evidence supporting conviction
were coercive and violated federal law. The California Court
of Appeal rejected the claim on the merits, describing the
comments as “scrupulously fair” and neither encouraging a
verdict for or against the defendant. The court cited the state’s
constitutional provision authorizing a judge to comment on
the evidence, see Cal. Const. art. VI, § 10, and cases applying
it.

  The direct appeal also involved a claim that the court
should have advised counsel immediately about Juror 9’s
wish to be excused. The state appellate court ruled Smith had
waived the claim by failing to object.

   Smith filed this habeas petition in federal district court pro
se. After appointing counsel, the district court granted the
petition on the claim that the judge’s comments regarding the
defendants’ statements were coercive and violated clearly
established federal law, but denied the petition on Smith’s
claims of constitutional error arising from the court’s ex parte
contact with Juror 9. The state appealed and Smith cross-
appealed. We have jurisdiction pursuant to 28 U.S.C.
§ 2253(a).
                        SMITH v. CURRY                     12579
                          ANALYSIS

   In reviewing the district court’s grant or denial of a habeas
petition under 28 U.S.C. § 2254, we conduct our analysis de
novo. See, e.g., Yee v. Duncan, 463 F.3d 893, 897 (9th Cir.
2006). The function of the federal courts under the standards
of the Antiterrorism and Effective Death Penalty Act
(“AEDPA”) is to review the “last reasoned decision” of the
state courts. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991).
A federal habeas petitioner is entitled to habeas relief in lim-
ited circumstances. Even if his conviction involved a violation
of the United States Constitution, habeas relief is warranted
only if the decision of the state court “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States,” or if the state court decision “was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1) & (2).

   The Supreme Court has held that “clearly established Fed-
eral law” under AEDPA means “the governing legal principle
or principles set forth by the Supreme Court at the time the
state court renders its decision.” Lockyer v. Andrade, 538 U.S.
63, 71-72 (2003). In this case, the last reasoned state court
decision is the 2000 decision of the California Court of
Appeal.

I.   The Instruction to a Deadlocked Jury

   The trial judge in this case instructed the jury, after it had
returned deadlocked for the third time, that it should consider
certain “consistencies and inconsistencies” in the evidence
apart from the DNA evidence that the holdout juror, Juror 10,
had questioned. The evidence that the district court selected
and replayed for the jury consisted of the post arrest state-
ments of the codefendants, Hinex and petitioner Smith. The
statements were all consistent in stating that Smith went into
12580                   SMITH v. CURRY
the house where the crimes were committed, but were incon-
sistent as to whether Hinex went in and whether Hinex was
ever alone with Mrs. S. The trial judge delivered his com-
ments over defense counsel’s vehement objection that they
were calculated to produce a guilty verdict in light of Juror
10’s concerns about DNA evidence, because the judge had
heard so much scientific evidence the jury did not hear that
validated the DNA results in the case. Defense counsel also
insisted that the judge’s comments on the evidence would not
be “scrupulously fair” because they isolated Smith’s and
Hinex’s contradictory in-court testimony.

   [1] California’s constitution expressly provides that a judge
may comment on the evidence. “The court may make any
comment on the evidence and the testimony and credibility of
any witness as in its opinion is necessary for the proper deter-
mination of the cause.” Cal. Const. art. VI, § 10. In approving
the judge’s instruction and commentary, the state Court of
Appeal cited two California cases in which the judge had
commented on the evidence to a deadlocked jury. People v.
Proctor, 842 P.2d 1100 (Cal. 1992); People v. Rodriguez, 726
P.2d 113 (Cal. 1986). Neither involved a trial court addressing
known concerns of a holdout juror.

   In upholding the commentary and instruction in this case,
the California Court of Appeal correctly recognized that Cali-
fornia law is more lenient than federal guidelines imposed by
the United States Supreme Court in the exercise of the Court’s
supervisory powers over the federal district courts instructing
a deadlocked jury. The state court also acknowledged that
California courts must respect federal constitutional protec-
tions as delineated by the U.S. Supreme Court. The issue in
federal habeas review is whether the Court of Appeal’s opin-
ion is contrary to clearly established federal law or an unrea-
sonable application of established federal law.

  [2] The Supreme Court has not often had occasion to deal
with the constitutional dividing line between instructing a jury
                        SMITH v. CURRY                    12581
and coercing it. This is no doubt because the Court in the
exercise of its supervisory powers has developed prophylactic
rules to govern the federal courts. See, e.g., Quercia v. United
States, 289 U.S. 466 (1933). We therefore deal with only a
handful of cases directly applying constitutional limits on the
authority of a trial judge to encourage a jury toward produc-
tive deliberations resulting in an unanimous verdict. Those
cases, however, define with clarity some of the critical federal
constitutional boundaries. An analysis of the Supreme Court’s
decisions, dating back to 1896, requires us to conclude that
the California Court of Appeal’s approval of the instruction in
this case, directing the jurors to the evidence the judge
believed supported conviction, crossed the boundary from
appropriate encouragement to exercise the duty to deliberate
in order to reach a unanimous verdict, and went into the for-
bidden territory of coercing a particular verdict on the basis
of the judge’s selective view of the evidence. The state court’s
decision upholding the instruction as a fair instruction was an
unreasonable application of established Supreme Court law.

   The grandparent of all the cases dealing with instructing a
deadlocked jury is Allen, 164 U.S. 492, the first case to con-
sider and approve the use of a supplemental charge to a dead-
locked jury. The Allen instruction charged the jurors in the
minority to consider the views of the majority and to ask
themselves whether their own views were reasonable. 164
U.S. at 501. In approving this instruction, the Court said that
jurors should listen and be willing to change their minds:

    While, undoubtedly, the verdict of the jury should
    represent the opinion of each individual juror, it by
    no means follows that opinions may not be changed
    by conference in the jury room. The very object of
    the jury system is to secure unanimity by a compari-
    son of views, and by arguments among the jurors
    themselves. It certainly cannot be the law that each
    juror should not listen with deference to the argu-
    ments, and with a distrust of his own judgment, if he
12582                   SMITH v. CURRY
    finds a large majority of the jury taking a different
    view of the case from what he does himself. It can-
    not be that each juror should go to the jury room
    with a blind determination that the verdict shall rep-
    resent his opinion of the case at that moment, or that
    he should close his ears to the arguments of men
    who are equally honest and intelligent as himself.

Id. at 501-02.

   The charge approved in Allen is similar to the first two sup-
plemental charges that the trial judge gave the jurors in this
case. Those instructions are not challenged. The third supple-
mental charge, however, went far beyond Allen. The trial
court by that time knew what was dividing the jury and there-
fore commented on specific evidence to address the known
concerns of a holdout juror.

   For further guidance we jump forward nearly a hundred
years to the Supreme Court’s decision in Lowenfield, 484 U.S.
231. Lowenfield was a habeas case arising out of a Louisiana
state court conviction. After receiving notes from the jury that
it was having difficulty reaching a decision, the judge polled
the jury as to whether further deliberations would be helpful.
The judge asked each juror, “Do you feel that any further
deliberations will enable you to arrive at a verdict?” Id. at
234. Eleven jurors answered in the affirmative and one in the
negative. Id. at 234-35. The court then reinstructed the jury,
telling it that if it was unable to agree unanimously on a rec-
ommendation “the Court shall impose the sentence of Life
Imprisonment without benefit of Probation, Parole or Suspen-
sion of Sentence.” Id. at 235. Defense counsel did not object
to the polling or the supplemental instruction, and the jury
returned in thirty minutes with a verdict sentencing the defen-
dant to death. Id.

   In upholding the conviction and rejecting the habeas peti-
tioner’s claim of improper coercion, the Court reiterated the
                        SMITH v. CURRY                    12583
same standard that it had previously used in cases involving
its exercise of supervisory powers of lower federal courts,
which is that reviewing courts must consider the trial court’s
supplemental charge “in its context and under all the circum-
stances.” Id. at 237 (quoting Jenkins v. United States, 380
U.S. 445, 446 (1965) (per curiam)). The Court concluded in
Lowenfield that the instruction was not coercive in the cir-
cumstances of that case. It rested this conclusion in major part
upon its determination that the instruction in that case was
less coercive than in Allen, because the court in Allen urged
the minority to consider the views of the majority and to ques-
tion the reasonableness of the minority’s own views. Id. at
237-38. Quoting the famous language from Allen that the
object of the jury system is to “secure unanimity by a compar-
ison of views,” the Supreme Court in Lowenfield said that the
“continuing validity of this Court’s observations in Allen are
beyond dispute, and they apply with even greater force in
cases such as this, where the charge given, in contrast to the
so-called ‘traditional Allen charge,’ does not speak specifi-
cally to the minority jurors.” Id. In the case before us, of
course, the court’s third supplemental instruction spoke
directly to the minority juror.

   With respect to the polling of the jury that informed the
trial court in Lowenfield of the jury’s numerical division on
the utility of future deliberation, the Supreme Court stressed
that the trial court did not know how the jurors stood on the
merits. In polling the jury, the trial judge in Lowenfield was
not asking the jurors “how they stood on the merits of the ver-
dict, but how they stood on the question of whether further
deliberations might assist them in returning a verdict.” Id. at
240. In this case, the court did know exactly how the jurors
stood on the merits.

   [3] Lowenfield went so far as to observe that it is imper-
missible for the judge to instruct the jury it must reach a ver-
dict. 484 U.S. at 239. In this case, the trial court can be said
to have gone beyond simply instructing the jury that it must
12584                   SMITH v. CURRY
reach a verdict; the judge pointed the jury to evidence leading
to a particular verdict.

   [4] The California Court of Appeal did not discuss any of
these federal constitutional standards. The most recent
Supreme Court decision with respect to deadlocked jury
instructions and habeas relief reminds us, however, that the
state court need not expressly cite federal law in its decision.
See Early, 537 U.S. at 8 (for the state court, avoiding a deci-
sion that is “contrary to” clearly established federal law “does
not require citation of [Supreme Court] cases — indeed, it
does not even require awareness of [Supreme Court] cases, so
long as neither the reasoning nor the result of the state court
decision contradicts them.”) (original emphasis). It is not
enough that the state courts “failed to apply” clearly estab-
lished Supreme Court law; the state court decision must be
contrary to Supreme Court law or an unreasonable application
of it. Id. Accordingly, whether a supplemental instruction
amounts to coercion of a constitutional degree must be judged
on the basis of all the circumstances in the case. Lowenfield,
484 U.S. at 237 (citing Jenkins, 380 U.S. at 446).

   [5] The trial court in this case effectively highlighted the
specific evidence the court thought supported the guilty ver-
dict favored by the majority of jurors. Moreover, the court did
so over the vehement and eloquent objection of defense coun-
sel, who pointed out in no uncertain terms that the instruction
was likely to coerce the holdout juror to agree to convict.

   [6] The California Court of Appeal’s conclusion that the
trial court’s instruction was not coercive—in particular its
determination that “the [trial] court’s comments on the evi-
dence were scrupulously fair” and so they did not deprive
Smith of his constitutional right to trial by jury — was an
objectively unreasonable application of clearly established
Supreme Court law. See 28 U.S.C. § 2254(d). The judge knew
not only the division of the jury but also the precise reasons
the holdout juror, in his note, said he “in good conscience
                         SMITH v. CURRY                    12585
[could] not vote for conviction.” In light of this knowledge,
the judge directed — not suggested — that the jury, and the
holdout juror in particular, concentrate on certain evidence.
The judge did so after presenting a summary of that evidence
that was one-sided both as to the description of the evidence
itself and its relation to the other evidence in the trial as a
whole. By taking over the jury deliberations in this manner,
the trial judge deprived Smith of his constitutional right to
trial by jury. The California Court of Appeal’s contrary con-
clusion was objectively unreasonable, for several reasons.

   [7] First, the trial judge’s comments on the evidence were
addressed to the holdout juror, and the juror had to have
known that. The judge had told the jury that because of its
inability to reach a verdict, and in light of the communications
the judge had thus far received, he was issuing a further
instruction, which, as it turned out, included the summary of
the evidence and the direction to listen to the replaying of the
taped interrogations. The jury, or the holdout juror at the very
least, knew that Juror 10’s note was one of the communica-
tions the judge was referring to, and would expect the judge’s
further instructions to address the concerns stated in that note.
In particular, given the specific inquiry in Juror 10’s note
about whether there was any other credible evidence on the
oral copulation charge, and the nature of the judge’s new
instructions and comments, the holdout juror reasonably could
have understood that the trial court was specifically urging
that juror to reconsider his inability to vote for conviction, by
pointing to evidence other than the DNA evidence that, in the
judge’s view, supported a guilty verdict.

   [8] Second, the judge’s charge, using mandatory language,
directed the jury to weigh Smith’s and Hinex’s post-arrest
statements to the police. The charge did not merely suggest
that the jury “consider and discuss” the statements; the judge
told it to do so. In addition, the judge required the jury to lis-
ten again to the taped interrogations. The judge highlighted
the importance of Smith’s and Hinex’s interrogation evidence
12586                   SMITH v. CURRY
even further by sending transcripts of the statements — and
only those statements — into the jury room, although the jury
had not asked for them.

   [9] Third, the summary of the evidence was not neutral by
any reasonable standard, whether viewed in isolation or in
light of all the evidence at trial. In describing the consisten-
cies and inconsistencies between Hinex’s and Smith’s state-
ments, the judge twice referred to Hinex’s insistence that he
did not go in the house. Yet, Hinex’s contention that he stayed
outside the house’s screen door at all times was strongly con-
tradicted by all the other witnesses’ trial testimony. For exam-
ple, both Mr. and Mrs. S testified that two men had been in
the house. Right after the crime, both identified Hinex as one
of them—indeed, as the one who carried the gun and sexually
assaulted Mrs. S. And both Hinex and Smith insisted in their
police statements that they were the only two individuals at
the scene.

   Yet, in the Hinex interview the judge summarized for the
jury, required the jury to hear, and made available to the jury
in the jury room in transcript form, Hinex maintained that
only one person, Smith, went into the main part of the house.
The judge’s comments thus isolated Hinex’s statement from
the other trial evidence that placed Hinex in the Ss’ home and
possibly responsible for the oral copulation crime, directing
the jury to compare the Hinex statement to the post-arrest
interview of Smith. Viewed in the context of the rest of the
trial evidence, the judge’s comments inappropriately directed
the jury to give equal weight to Hinex’s and Smith’s post-
arrest statements with respect to whether a second person was
in the home. The judge omitted to point out that much of
Hinex’s account did not square with the other trial evidence,
while Smith’s basic story — leaving aside his denial on the
oral copulation issue — did.

   [10] Fourth, the judge’s summary of the taped interroga-
tions omitted a key inconsistency between Smith’s and
                         SMITH v. CURRY                    12587
Hinex’s post-arrest statements to the police. As the judge
summarized the statements, both Smith’s and Hinex’s state-
ments were consistent in that both represented that Smith was
alone with Mrs. S in the bedroom for a while. But Smith’s
actual statement was that Smith at some point left Hinex with
Mrs. S in the bedroom while Smith searched other rooms in
the house. Thus, from the judge’s summary of what were, in
his view, the “most important” consistencies and inconsisten-
cies in the statements, both Smith and Hinex agreed that only
Smith had been alone in the bedroom with Mrs. S. The judge
omitted Smith’s contrary exculpatory statement to Detective
Willover, that Hinex had also been alone with Mrs. S and so
had the opportunity to perpetrate the sexual assault. The omis-
sion was highly detrimental to Smith.

   Overall, in contrast to the California Court of Appeal’s con-
clusion that the trial court “highlight[ed] the defendants’ state-
ments to the police” in a way that “did not ‘specifically
reference’ any particular inconsistency to the defendant’s det-
riment,” the trial judge twice repeated, and so emphasized,
Hinex’s statement that only Smith went into the house, while
ignoring a critical portion of Smith’s testimony that contra-
dicted Hinex’s account. The trial court thus did select particu-
lar inconsistencies to the defendant’s detriment.

   [11] The probable coercive effect is illustrated by the fact
that the jury deliberated for only slightly longer than one hour
after receiving the last instruction. See Lowenfield, 484 U.S.
at 240 (“[W]e are mindful that the jury returned with its ver-
dict soon after receiving the supplemental instruction, and that
this suggests the possibility of coercion.”). Defense counsel
timely objected on coercion grounds, demonstrating that the
potential harm to the defendant, as well as the judge’s precon-
ceived view of Smith’s guilt, was immediately apparent. Cf.
id. (defense counsel’s failure to object to a supplemental
instruction “indicates that the potential for coercion argued
now was not apparent to one on the spot”).
12588                   SMITH v. CURRY
   [12] In sum, the California Court of Appeal’s conclusion
that the trial court’s comments on the evidence were “scrupu-
lously fair” was objectively unreasonable, and its legal con-
clusion regarding jury coercion, based on that assessment,
was consequently objectively unreasonable as well. In fact,
the comments substituted the judge for the jury as to the man-
ner and substance of deliberations and thereby denied Smith
his constitutional right to the uncoerced verdict of the jury.

   We emphasize that it was the combination of factors,
including the fact that the comments were directed to the
known concern of the holdout juror, and the incomplete, one-
sided summary of the evidence related to those concerns, that
makes the Court of Appeal’s conclusion an unreasonable
application of Supreme Court law regarding jury coercion.
Absent these factors, we might reach a different conclusion.
With them, the case represents the most coercive instruction
of any in the coercion cases we have reviewed.

  The California Court of Appeal was not only incorrect in
determining that the trial court’s actions and comments were
proper, but was objectively unreasonable in so concluding.

II.   The Trial Court’s Ex Parte Contact with Juror 9

   In his cross-appeal, Smith challenges the district court’s
denial of habeas relief on his claim that the state trial court’s
ex parte contact with a member of the jury, Juror 9, violated
his right to counsel, his right to be present, and his right to a
fair trial. We affirm the district court’s denial of relief on
these claims.

   The trial court’s contact with Juror 9 occurred immediately
after the court gave the final instruction in which it improp-
erly commented on the evidence the court believed supported
Smith’s guilt on the oral copulation charge. As the jury left
the courtroom for lunch following this instruction, Juror 9
handed the bailiff a note expressing her frustration with the
                         SMITH v. CURRY                    12589
course of the deliberations, and stating that she wished to be
excused for the day due to another commitment. The court
had the bailiff instruct Juror 9 to return for deliberations after
lunch, but did not inform either the prosecutor or defense
counsel of this incident until they were in the courtroom wait-
ing for the jury to return with a verdict on the oral copulation
charge. Defense counsel made no objection at the time.

   On direct appeal, the Court of Appeal found Smith had
waived any constitutional claims by failing to object in a
timely manner. The court stated:

    A trial court may discharge a juror for good cause
    and substitute an alternate juror at any time before
    the jury has returned its verdict to the court. . . .
    [E]ven though the jury had reached a verdict by the
    time the trial court told counsel about the note from
    juror No. 9, defense counsel could still have
    demanded a hearing on whether that juror was fit to
    deliberate, and the court could still have discharged
    the juror on a showing of good cause and substituted
    an alternate.

   [13] The Court of Appeal’s determination was not contrary
to or an unreasonable application of established federal law.
The Supreme Court has expressly held that counsel’s failure
to object at trial upon learning of the judge’s ex parte contact
with a juror constitutes a waiver of any constitutional claims
stemming from the contact. United States v. Gagnon, 470
U.S. 522, 528 (1985). Moreover, even if there were any con-
stitutional error, Smith has not shown that the trial court’s ex
parte contact with Juror 9 was prejudicial. See Rushen v.
Spain, 464 U.S. 114, 117 (1983) (per curiam) (any constitu-
tional error resulting from ex parte contact between a juror
and the court is subject to harmless error analysis); United
States v. Madrid, 842 F.2d 1090, 1093-94 (9th Cir. 1988)
(defendant must demonstrate “actual prejudice” resulting
from ex parte contact between the trial judge and a juror).
12590                   SMITH v. CURRY
   [14] The contact between Juror 9 and the court pertained
solely to the juror’s wish to be excused from deliberations,
not to any factual or legal issue in Smith’s case. Although
Juror 9’s communication reveals the extent of the jury’s frus-
tration with the deliberations, strengthening Smith’s claim
that the trial court’s instructions and comments on the evi-
dence were coercive, the trial court’s ex parte contact with
Juror 9 itself has not been shown to have affected the out-
come. We agree with the district court that the state court’s ex
parte contact with Juror 9 “did not impair [Smith’s] right to
a fair trial” because there was no “reasonable possibility of
prejudice from the exchange.”

                       CONCLUSION

   The trial court’s third instruction and comment to the jury
was coercive and the Court of Appeal’s opinion upholding
Smith’s convictions was an unreasonable application of
United States Supreme Court law that was firmly established
at the time. Accordingly, we affirm the district court’s grant
of habeas corpus relief on this claim. We also affirm the dis-
trict court’s denial of habeas corpus relief on the claims stem-
ming from the trial court’s ex parte contact with a juror.

  The judgment of the district court is AFFIRMED.



N.R. SMITH, Circuit Judge, concurring in part and dissenting
in part:

   I concur in Part II of the majority opinion. I respectfully
dissent with regard to Part I, because I believe the majority
misapplies the exceptionally deferential standard of review
required by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”).

  With the AEDPA standard of review, Congress set the bar
exceptionally high to ensure that federal courts afford the
                           SMITH v. CURRY                        12591
utmost deference to a state court adjudication. See Riley v.
Payne, 352 F.3d 1313, 1323 (9th Cir. 2003) (“This standard
is properly deferential because of the important role that state
courts play in applying federal constitutional guarantees and
because of federalism concerns that are evoked when we
assess whether a state court system holds a state prisoner in
violation of the federal constitution.”). Therefore, a federal
court may not grant habeas relief from a state court conviction
unless it concludes that the state court’s adjudication of the
claims “(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 evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d) (emphasis added); Price v. Vincent, 538 U.S. 634,
638-39 (2003).

   It is clearly established that a “criminal defendant . . . being
tried by a jury is entitled to the uncoerced verdict of that
body.” Lowenfield v. Smith, 484 U.S. 231, 241 (1988). I do
not disagree with the majority’s general assessment that,
given the trial judge’s knowledge of the holdout juror’s con-
cerns, the trial court’s supplemental instructions and the man-
ner in which the judge selectively commented on the evidence
likely affected the jury’s verdict. Therefore, in my view, the
California Court of Appeal was simply wrong in concluding
that the trial judge’s comments on the evidence were “scrupu-
lously fair” and not coercive.

   Yet, to grant relief under the AEDPA, it is simply not
enough for us to conclude that the state court decision is
wrong. See Early v. Packer, 537 U.S. 3, 11 (2002) (per
curiam); 28 U.S.C. § 2254(d)(1) & (2). Even if we are “left
with a firm conviction that the state court was erroneous,” we
cannot grant relief unless the state court’s application of
clearly established Supreme Court holdings1 was objectively
  1
  “[T]he only definitive source of clearly established federal law under
AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as
12592                      SMITH v. CURRY
unreasonable. See Lockyer v. Andrade, 538 U.S. 63, 75-76
(2003) (citations omitted); Ramirez v. Castro, 365 F.3d 755,
762 (9th Cir. 2004) (“The petitioner must demonstrate not
only that the state court’s application of governing federal law
was erroneous, but also that it was objectively unreasonable.”)
(citing Andrade, 538 U.S. at 75). “A state court’s decision is
an unreasonable application of clearly established federal law
if ‘the state court identifies the correct governing legal princi-
ples from [Supreme Court] decisions but unreasonably applies
that principle to the facts of the prisoner’s case.’ ” Ramirez,
365 F.3d at 762 (citing Williams, 529 U.S. at 413) (alterations
in Ramirez). See also Andrade, 538 U.S. at 75.

   In this very difficult case, I believe the majority has “fail-
[ed] to give proper deference to [the] state court[ ] by conflat-
ing error (even clear error) with unreasonableness.” Andrade,
538 U.S. at 75 (citations omitted). See also Woodford v. Visci-
otti, 537 U.S. 19, 25 (2002) (per curiam) (reversing us
because we failed to observe the distinction between an incor-
rect application and an unreasonable application); Packer, 537
U.S. at 11 (same).“Even if we agreed . . . that there was jury
coercion here,” we should not grant of relief if “it is at least
reasonable to conclude that there was not . . . .” Packer, 537
U.S. at 11. In other words, to affirm the district court’s grant
of relief, we must conclude that, in context and considering all
of the circumstances of this particular case, no rational court
applying Lowenfield could conclude that the verdict was any-
thing but coerced.

   In this case, the California Court of Appeal reviewed the
trial judge’s supplemental instruction and considered his com-
ments on the evidence (even if the court did not expressly
restate every fact or circumstance in its decision). In conclud-

of the time of the state court decision.” Clark v. Murphy, 331 F.3d 1062,
1069 (9th Cir. 2003) (citing Williams v. Taylor, 529 U.S. 362, 412
(2000)).
                         SMITH v. CURRY                    12593
ing that the verdict was not coerced, the Court of Appeal rea-
soned that the trial judge did not tell the jury what verdict to
reach or expressly indicate what conclusion ought to be
reached from the evidence upon which the judge commented.
The trial judge did not indicate which of the witnesses (the
petitioner or his co-defendant) was more credible. He did not
express any notion of the petitioner’s guilt or innocence. He
also did not tell the jury that it had an obligation to reach a
verdict. Further, the trial judge did not affirmatively poll the
jury or ask the jury about its numerical division. That the trial
judge ultimately learned of the jury’s division and of the spe-
cific concerns of the holdout juror is problematic. That he
then selectively summarized the evidence is equally trouble-
some. But I can find no clearly established federal law indi-
cating that a trial judge may not comment on the evidence
when he knows the numerical division of the jury, and no
Supreme Court holding requires a state court judge (when
commenting on the evidence) to recite any and all evidence
that might be relevant, contradictory, or even exculpatory.

   I agree with the majority that the evidence the trial judge
selectively presented and summarized (given the holdout
juror’s concerns), may have had a coercive effect on the jury.
I dissent because it may at least be reasonable to conclude that
it did not. See Packer, 537 U.S. at 11. On this basis, I would
reverse the district court’s grant of relief on the basis that the
California Court of Appeal’s decision was not an objectively
unreasonable application of clearly established Supreme
Court precedent.
