                            NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                             FILED
                            FOR THE NINTH CIRCUIT                               JUN 08 2011

                                                                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS

RICKEY TODD MAJOR,                               No. 10-15742

              Petitioner - Appellant,            D.C. No. 3:99-cv-00237-LRH-
                                                 RAM
  v.

E. K. MCDANIEL; FRANKIE S. DEL                   MEMORANDUM*
PAPA,

              Respondents - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                       Argued and Submitted March 15, 2011
                            San Francisco, California

Before: PAEZ, BERZON, and BEA, Circuit Judges.

       Nevada state prisoner Rickey Todd Major (“Major”) appeals the district

court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254.

In a previous memorandum disposition, we denied Major’s appeal of the two

issues the district court certified for appeal under 28 U.S.C. § 2253(c), both of


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
which related to the alleged ineffectiveness of Major’s trial attorney. See Major v.

McDaniel, No. 10–15742, 2011 WL 1097750, at *1 (9th Cir. Mar. 25, 2011)

(mem. disp.). At the same time, we granted a certificate of appealability and

ordered supplemental briefing on Ground Two of Major’s Amended Petition for

Habeas Corpus, which alleged that Major’s right to due process and a fair trial

were violated when the trial court refused to dismiss a juror whose coworker

remarked that the prosecution had possession of a knife used in the murder for

which Major was convicted.1 See id. at *2. We now address that issue.

      Major’s petition is governed by the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254(d), so we cannot grant habeas

relief unless we conclude that the last reasoned Nevada state court decision “‘was

contrary to’ federal law then clearly established in the holdings of th[e] [Supreme]

Court; or that it ‘involved an unreasonable application of’ such law; or that it ‘was

based on an unreasonable determination of the facts’ in light of the record before

[it].’” Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (citations omitted). We

review the district court’s denial of a habeas petition de novo. See Martinez v.




      1
       We denied Major’s request for a certificate of appealability as to the
remaining uncertified issues. See id. at *2.

                                          2
Schriro, 623 F.3d 731, 735 (9th Cir. 2010). Upon consideration of the

supplemental briefing on the final issue presented by Major’s appeal, we affirm.

      1. Mattox v. United States, 146 U.S. 140 (1892), and Remmer v. United

States (“Remmer I”), 347 U.S. 227 (1954) clearly establish that any possibly

prejudicial “private communication . . . with a juror during a trial about the matter

pending before the jury is, for obvious reasons, deemed presumptively prejudicial,”

and “the burden rests heavily upon the Government to establish, after notice to and

hearing of the defendant, that such contact with the juror was harmless to the

defendant.” Id. at 229; see also Mattox, 146 U.S. at 150 (“Private

communications, possibly prejudicial, between jurors and third persons . . . are

absolutely forbidden, and invalidate the verdict, at least unless their harmlessness

is made to appear.”). The communications at issue here with a non-juror were

substantive and so “possibly prejudicial,” id., and yet, contrary to Mattox and

Remmer I, the Nevada Supreme Court held that Major was entitled only to the

hearing that he received, at which he had the burden of proving actual bias. The

Nevada Supreme Court’s decision was therefore “contrary to” clearly established

Supreme Court precedent. See 28 U.S.C. § 2254(d)(1).

      2. Because the Nevada Supreme Court applied the wrong legal standard,

“we must . . . evaluate de novo [Major’s] constitutional claim[], without limiting


                                          3
ourselves to the reasoning of the state court.” Frantz v. Hazey, 533 F.3d 724, 739

(9th Cir. 2008) (en banc). Doing so, we conclude that giving Major the benefit of a

presumption of prejudice, the record nonetheless demonstrates that there was no

reasonable possibility that the communications at issue influenced the verdict. See

Remmer v. United States (“Remmer II”), 350 U.S. 377, 381–82 (1956); Mattox,

146 U.S. at 150–51; Caliendo v. Warden of Cal. Men’s Colony, 365 F.3d 691, 697

(9th Cir. 2004); United States v. Dutkel, 192 F.3d 893, 899 (9th Cir. 1999).

      The juror Major contends should have been dismissed did not solicit the

communication from her coworker; she took steps to put an end to the

conversation; and she conscientiously reported it to the trial judge. The juror was

questioned about the communication by the prosecutor, Major’s attorney, and the

trial judge. Not only did the juror state unequivocally that she would not consider

the communication in any way, but, crucially, she also said emphatically that she

did not believe that her coworker was telling the truth, as the coworker was

apparently prone to lying. Accordingly, presuming prejudice, as we must, the

presumption was overcome, and there was no reasonable possibility that the

communications influenced the verdict.

      AFFIRMED.




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