                                 RECOMMENDED FOR PUBLICATION
                                 Pursuant to Sixth Circuit I.O.P. 32.1(b)
                                        File Name: 20a0183p.06

                    UNITED STATES COURT OF APPEALS
                                   FOR THE SIXTH CIRCUIT



 KEITH BERNARD SMITH,                                         ┐
                                  Petitioner-Appellant,       │
                                                              │
                                                               >        No. 18-1751
        v.                                                    │
                                                              │
                                                              │
 NOAH NAGY, Warden,                                           │
                                 Respondent-Appellee.         │
                                                              ┘

                          Appeal from the United States District Court
                         for the Eastern District of Michigan at Detroit.
                     No. 2:11-cv-10261—Arthur J. Tarnow, District Judge.

                                      Argued: April 29, 2020

                                Decided and Filed: June 15, 2020

                Before: COLE, Chief Judge; SILER and CLAY, Circuit Judges.
                                   _________________

                                             COUNSEL

ARGUED: Wesley R. Abrams, VORYS, SATER, SEYMOUR AND PEASE LLP, Cincinnati,
Ohio, for Appellant. Daniel Ping, OFFICE OF THE MICHIGAN ATTORNEY GENERAL,
Lansing, Michigan, for Appellee. ON BRIEF: Wesley R. Abrams, Nathan L. Colvin, VORYS,
SATER, SEYMOUR AND PEASE LLP, Cincinnati, Ohio, for Appellant. Daniel Ping, John S.
Pallas, OFFICE OF THE MICHIGAN ATTORNEY GENERAL, Lansing, Michigan, for
Appellee.
                                       _________________

                                              OPINION
                                       _________________

       COLE, Chief Judge. Keith Bernard Smith, a Michigan prisoner, appeals the denial of his
petition for a writ of habeas corpus under 28 U.S.C. § 2254. He argues that he is entitled to relief
 No. 18-1751                               Smith v. Nagy                                   Page 2


because: (1) the state court should have granted him a post-trial evidentiary hearing to determine
whether the jury improperly relied on certain prejudicial information in rendering its verdict;
(2) there was insufficient evidence to convict him; and (3) the state and district courts erred in
refusing to consider new evidence that supports his innocence. Because none of Smith’s claims
provides us a basis for exercising our limited authority to grant habeas relief to a state prisoner,
we affirm the denial of the petition.

                                                 I.

       On the morning of February 15, 2008, Detroit police discovered Annette Ralston, a 58-
year-old woman, dead in the bedroom of her home. Ralston had suffered several stab wounds to
the head and groin area, slash wounds to the face, and blunt-force wounds to the back of the
head. A severed carotid artery was likely the immediate cause of death. Ralston also exhibited
multiple “defensive-type” cuts and bruises on her hands and wrists, and she was clutching long
brown hair, which was never matched to any particular person. Blood was found throughout
Ralston’s house.

       Four days after the discovery of Ralston’s body, police arrested Keith Smith and charged
him with three crimes in connection with Ralston’s death: first-degree felony murder, first-
degree premeditated murder, and assault with intent to commit armed robbery. At the time that
the police arrested Smith, they also seized Smith’s van and other personal belongings, including
a pair of eyeglasses. The van and eyeglasses were processed for blood evidence, but none was
recovered. No knives or other weapons were recovered from Smith. Overall, there was no
physical evidence linking Smith to Ralston’s death.

       At Smith’s trial, two of Smith’s acquaintances—Shayne Dennis and Latoya Evans—
testified that Smith had come over to their house two days after the discovery of Ralston’s body.
At some point during the conversation, Smith admitted that he had “done something very bad”
and proceeded to confess to killing a woman “at a safe house.” (R. 12-4, PageID 428–29.)
Smith conveyed that he had intended to rob the safe house. To that end, he dropped off the
victim’s son somewhere else and went back to the house with the victim, where he ended up
 No. 18-1751                               Smith v. Nagy                                    Page 3


killing her while trying to force her to open a safe located in the bedroom. Evans recalled that
Smith had identified the victim as “a fifty year old white lady.” (Id., PageID 514.)

       Lawanda Baytops, Ralston’s housemate, also testified at Smith’s trial. Baytops told the
jury about a “big” jewelry box that Ralston kept in her bedroom, which was “shaped like a safe”
but did not have a lock. (R. 12-3, PageID 325, 350.) Baytops remembered seeing the jewelry
box still in Ralston’s bedroom on the morning Ralston’s body was discovered. Baytops also
recalled that Smith was at the house with Ralston and Ralston’s son on the evening before
Ralston’s body was discovered. Ralston’s son, James White, confirmed that Smith was at the
house that evening and that, later, Smith drove White to his foster home.

       The jury convicted Smith of first-degree felony murder and assault with intent to commit
armed robbery but acquitted him of first-degree premeditated murder.            Before sentencing,
however, one juror approached defense counsel and reported that he and other jurors had
changed their vote from “not guilty” to “guilty” based on a belief that Smith would receive a
relatively light sentence for felony murder. Smith moved for a new trial or an evidentiary
hearing, but the state trial judge declined to grant either. The trial judge then sentenced Smith to
the mandatory sentence of life imprisonment without possibility of parole for the felony-murder
conviction, see Mich. Comp. Laws § 750.316(1), and a concurrent sentence of five to forty
years’ imprisonment for the assault conviction.       Smith appealed to the Michigan Court of
Appeals, challenging both the sufficiency of the evidence used to convict him and the trial
judge’s denial of an evidentiary hearing and new trial. The Michigan Court of Appeals rejected
Smith’s arguments on the merits and affirmed his convictions. People v. Smith, 2009 WL
3837414, at *2, *4–5 (Mich. Ct. App. Nov. 17, 2009) (per curiam). The Michigan Supreme
Court denied Smith’s pro se application for discretionary review on March 29, 2010, in a
summary order. People v. Smith, 779 N.W.2d 813 (Mich. 2010) (mem.).

       On January 13, 2011, Smith, acting pro se, filed a petition for a writ of habeas corpus
under 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Michigan.
Subsequently, in March 2012, Smith moved, and the district court agreed, to hold the petition in
abeyance while Smith returned to state court to exhaust additional claims.
 No. 18-1751                               Smith v. Nagy                                   Page 4


       Smith filed a motion for relief from judgment in the state trial court on June 18, 2012,
which was denied in November 2012. Smith did not appeal. In March 2013, Smith filed a
second motion for relief from judgment in the state trial court. Relevant here, this motion
included a claim for a new trial based on an affidavit that was signed in October 2012. The
affiant, Latoya Evans’s brother Robert Evans, attested that he spoke with Latoya Evans and
Shayne Dennis on the day that Smith allegedly confessed. Robert Evans stated that, according to
his sister and Dennis, Smith had not confessed to any crime but rather only said that the police
wanted to speak with him. Latoya Evans and Shayne Dennis, however, had thought that they
might receive a reward for providing information and resolved to “figure out how to get that
money if they could.” (R. 41-3, PageID 1046.) The state court declined to consider the merits of
Smith’s claim for a new trial based on the affidavit, holding that the claim was procedurally
barred on state-law grounds because Smith failed to establish that the affidavit’s allegations were
discovered after he filed his first motion for relief from judgment.

       Rather than appealing the state trial court’s decision, Smith filed a motion for a judgment
nunc pro tunc vacating the order denying his first motion for relief from judgment, asserting that
the first motion was filed by a prison paralegal without his knowledge and that he never received
the court orders denying either of his motions for relief from judgment. The state trial court
denied the motion. Smith filed a delayed appeal, which the Michigan Court of Appeals denied
“for lack of merit in the grounds presented.” People v. Smith, No. 331894 (Mich. Ct. App. June
27, 2016) (order). On October 24, 2017, the Michigan Supreme Court denied review in a
summary order. People v. Smith, 902 N.W.2d 419 (Mich. 2017) (mem.).

       Having exhausted his state remedies, Smith returned to the district court and amended his
habeas petition in December 2017 to add new claims, including one based on the affidavit of
Robert Evans. On June 12, 2018, the district court denied the amended petition. Like the
Michigan Court of Appeals, the district court rejected Smith’s challenges to the denial of an
evidentiary hearing and to the sufficiency of the evidence. The district court construed Smith’s
claim based on Robert Evans’s affidavit to be an actual innocence claim and rejected it as well,
holding that the affidavit by itself was not sufficient to support a freestanding actual innocence
 No. 18-1751                                Smith v. Nagy                                    Page 5


claim.    Although the district court denied the amended petition, it granted a certificate of
appealability on all claims. This timely appeal followed.

         In this court, Smith filed a pro se brief and moved for appointment of counsel. The
warden responded. We granted Smith’s motion for appointment of counsel, and a second round
of briefing followed.

                                                 II.

         In habeas proceedings, we review de novo the district court’s legal conclusions and
mixed determinations of law and fact. Bennett v. Brewer, 940 F.3d 279, 286 (6th Cir. 2019).
We typically review the district court’s factual findings for clear error, but when the district court
bases its factual determinations only on trial transcripts and court records—making no credibility
determination or other apparent finding of fact on its own—we review the district court’s factual
conclusions de novo. Id.; see also Ramonez v. Berghuis, 490 F.3d 482, 486 (6th Cir. 2007);
Dando v. Yukins, 461 F.3d 791, 796 (6th Cir. 2006).

         That said, the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
constrains our review of state-court decisions in habeas cases. Under AEDPA, a claim that was
“adjudicated on the merits” in the state court may not be a basis for habeas relief unless its
adjudication:

         (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).

         The “contrary to” and “unreasonable application” clauses of 28 U.S.C. § 2254(d)(1) have
“independent meaning.” Williams v. Taylor, 529 U.S. 362, 404–05 (2000); accord Bell v. Cone,
535 U.S. 685, 694 (2002). A state-court decision is “contrary to” clearly established federal law
if it (1) applies a rule that contradicts governing Supreme Court law; or (2) confronts a set of
facts “materially indistinguishable” from a decision of the Supreme Court and yet arrives at a
 No. 18-1751                                Smith v. Nagy                                     Page 6


different result. Williams, 529 U.S. at 405–06. A state-court decision involves an “unreasonable
application” of clearly established federal law if it (1) correctly identifies the governing legal rule
but unreasonably applies it to the facts of the instant case; or (2) either unreasonably extends an
established legal principle to a new context where it should not apply or unreasonably refuses to
extend that principle to a new context where it should apply. Id. at 407. We analyze the state
court’s adjudication of mixed questions of law and fact under the “unreasonable application”
prong of AEDPA. Jackson v. Bradshaw, 681 F.3d 753, 760 (6th Cir. 2012).

       The Supreme Court has emphasized that “an unreasonable application of federal law is
different from an incorrect application of federal law.” Williams, 529 U.S. at 410. Subsequent
Supreme Court decisions have interpreted this directive to mean that an unreasonable application
“must be ‘objectively unreasonable,’ not merely wrong; even ‘clear error’ will not suffice.”
White v. Woodall, 572 U.S. 415, 419 (2014) (quoting Lockyer v. Andrade, 538 U.S. 63, 75–76
(2003)). AEDPA “stops short of imposing a complete bar on federal-court relitigation of claims
already rejected in state proceedings.”       Harrington v. Richter, 562 U.S. 86, 102 (2011).
Nevertheless, the state court’s error must be “well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.” Id. at 103.

                                                 III.

       Smith raises three claims on appeal. First, he contends that the state court acted contrary
to or unreasonably applied clearly established federal law by denying him an evidentiary hearing
to determine whether the jury improperly relied on certain prejudicial information in rendering
its verdict. Second, he contends that the state court unreasonably applied clearly established
federal law in concluding that there was sufficient evidence to convict him of felony murder and
assault. Third, he contends that the state and district courts erred in refusing to consider the
affidavit of Robert Evans. We address each claim in turn.

                                                  A.

       The Sixth Amendment to the United States Constitution guarantees a criminal defendant
the right to a trial “by an impartial jury.” U.S. Const. amend. VI. This guarantee requires a jury
 No. 18-1751                               Smith v. Nagy                                  Page 7


to arrive at its verdict “based upon the evidence developed at the trial.” Turner v. Louisiana, 379
U.S. 466, 472 (1965) (quoting Irvin v. Dowd, 366 U.S. 717, 722 (1961)).

       Under the Supreme Court’s decision in Remmer v. United States, it is clearly established
that “a trial court, faced with an indication of jury bias, must conduct ‘a hearing with all
interested parties permitted to participate.’” United States v. Owens, 426 F.3d 800, 805 (6th Cir.
2005) (quoting Remmer v. United States, 347 U.S. 227, 230 (1954)); see also Smith v. Phillips,
455 U.S. 209, 215 (1982) (“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.”).
Although a defendant “must do more than simply raise the possibility of bias” to be entitled to a
Remmer hearing, “a ‘colorable claim of extraneous influence’” is sufficient. Owens, 426 F.3d at
805 (quoting United States v. Davis, 177 F.3d 552, 557 (6th Cir. 1999)). Once the defendant
raises a colorable claim of extraneous influence, the trial court “must hold a Remmer hearing ‘to
afford the defendant an opportunity to establish actual bias.’” United States v. Lanier, 870 F.3d
546, 549 (6th Cir. 2017) (quoting Davis, 177 F.3d at 557).

       The requirements of Remmer exist alongside the no-impeachment rule embodied in
Federal Rule of Evidence 606(b), which limits the extent to which juror testimony may be used
as evidence to impeach a jury verdict. Rule 606(b) provides that “[d]uring an inquiry into the
validity of a verdict or indictment, a juror may not testify about any statement made or incident
that occurred during the jury’s deliberations; the effect of anything on that juror’s or another
juror’s vote; or any juror’s mental processes concerning the verdict or indictment.” Fed. R. Evid.
606(b)(1). The rule contains several important exceptions, including when a juror’s testimony
relates to whether “extraneous prejudicial information was improperly brought to the jury’s
attention” or whether “an outside influence was improperly brought to bear on any juror.” Id.
606(b)(2)(A)–(B). Subject to the express exceptions in section (b)(2), however, Rule 606(b)
“prohibit[s] the use of any evidence of juror deliberations” to impeach a jury verdict. Warger v.
Shauers, 574 U.S. 40, 48 (2014). Michigan has a similar no-impeachment rule. See Mich. R.
Evid. 606(b); see also People v. Budzyn, 566 N.W.2d 229, 236 (Mich. 1997) (“[O]ral testimony
 No. 18-1751                                       Smith v. Nagy                                            Page 8


or affidavits may only be received on extraneous or outside errors, such as undue influence by
outside parties.”).1

         The no-impeachment rule is grounded in “[s]ubstantial policy considerations,” such as
encouraging “full and frank discussion in the jury room,” ensuring the finality of verdicts, and,
overall, preserving the integrity of the jury system. See Tanner v. United States, 483 U.S. 107,
119–21 (1987).         Accordingly, the Supreme Court has noted that the no-impeachment rule
“harmonize[s] with,” rather than detracts from, the holding of Remmer, which also is based on
the principle that “the integrity of jury proceedings must not be jeopardized by unauthorized
invasions.” Id. at 120 (quoting Remmer, 347 U.S. at 229).

         We similarly have observed that the no-impeachment rule, including its exceptions, seeks
“to balance the preservation of the integrity of the jury system and the rights of the defendant.”
United States v. Logan, 250 F.3d 350, 380 (6th Cir. 2001), superseded on other grounds by
statute as recognized in McAuliffe v. United States, 514 F. App’x 542, 549 (6th Cir. 2013). This
balance means that “if [a] case involves an extraneous or external influence on the jury, then a
post-verdict interrogation of jurors is permitted in order to adequately protect the defendant’s
constitutional rights.”       Id.    But if the case instead involves an “internal influence,” the
constitution does not require post-verdict interrogation of jurors.                    Id.; see also Garcia v.
Andrews, 488 F.3d 370, 375 (6th Cir. 2007) (“[A]n evidentiary hearing delving into allegations
of juror misconduct is required only where ‘extrinsic influence or relationships have tainted the
deliberations.’” (quoting Tanner, 483 U.S. at 120)).2




         1Michigan Rule of Evidence 606 was amended in 2012 to make it consistent with Federal Rule of Evidence
606. Mich. R. Evid. 606, Staff Comment to 2012 Amendment. At the time the Michigan Court of Appeals
considered the merits of Smith’s case in 2009, there was no Michigan counterpart to Federal Rule of Evidence
606(b). Smith, 2009 WL 3837414, at *2 n.1. Rather, Michigan’s no-impeachment rule at the time was judicially
created. See Budzyn, 566 N.W.2d at 236; Hoffman v. Monroe Pub. Sch., 292 N.W.2d 542, 545 (Mich. Ct. App.
1980).
         2The Supreme Court has recognized one circumstance in which application of the no-impeachment rule
would violate a defendant’s Sixth Amendment rights: “where a juror makes a clear statement that indicates he or she
relied on racial stereotypes or animus to convict a criminal defendant.” Peña-Rodriguez v. Colorado, 137 S. Ct.
855, 869 (2017). In carving out this “constitutional exception for evidence of racial bias,” id. at 865, the Supreme
Court concluded that such bias is “a familiar and recurring evil that, if left unaddressed, would risk systemic injury
to the administration of justice,” id. at 868. The Supreme Court moreover concluded that other safeguards in the
 No. 18-1751                                     Smith v. Nagy                                          Page 9


        The distinction between external and internal influences is therefore critical. In Tanner,
the Supreme Court decided that allegations of jurors being intoxicated during the trial related to
an internal influence. Tanner, 483 U.S. at 116–26. Focusing on “the nature of the allegation”
rather than the physical location of the jurors at the time the alleged misconduct occurred, id. at
117, the Tanner Court distinguished cases where a bribe was offered to a juror, id. (citing
Remmer, 347 U.S. at 228–30); where a court bailiff made comments about the defendant in the
presence of the jury, id. (citing Parker v. Gladden, 385 U.S. 363, 365 (1966) (per curiam));
where a juror submitted an employment application to the prosecutor’s office during the trial, id.
(citing Phillips, 455 U.S. at 209); and where jurors brought newspaper articles about the case
into the jury room, id. at 118 (citing United States v. Thomas, 463 F.2d 1061 (7th Cir. 1972)).
Instead, the Court likened the circumstances in Tanner to a claim that a juror had a psychological
disorder, id. at 118–19 (discussing United States v. Dioguardi, 492 F.2d 70 (2d Cir. 1974)); or a
claim that a juror did not understand English, id. at 119 (citing United States v. Pellegrini, 441 F.
Supp. 1367 (E.D. Pa. 1977), aff’d without opinion, 586 F.2d 836 (3d Cir. 1978) (table)). More
recently, the Supreme Court unanimously decided that alleged bias based on a juror’s own
personal experiences also constituted an internal influence.                 Warger, 574 U.S. at 51–52.
“‘External’ matters include publicity and information related specifically to the case the jurors
are meant to decide,” the Court explained, “while ‘internal’ matters include the general body of
experiences that jurors are understood to bring with them to the jury room.” Id. at 51.

        Likewise, we have explained that an external influence “must either relate to the case that
the jurors are deciding or be physically brought to the jury room or disseminated to the jury.”
Thompson v. Parker, 867 F.3d 641, 648 (6th Cir. 2017). Considerations based on jurors’
“general knowledge” or “their own wisdom, experience, and common sense” do not constitute
external influences. Id. at 647–48 (internal quotation marks and citation omitted). Thus, we
found an external influence where jurors looked up the defendant’s Facebook profile and
performed a Google search for information relating to issues in the case. Ewing v. Horton,
914 F.3d 1027, 1029–30 (6th Cir. 2019). But we found no external influence where a jury


trial process—for instance, voir dire—“may prove insufficient” at revealing racial bias. Id. at 868–69. Smith does
not contend that Peña-Rodriguez applies here.
 No. 18-1751                               Smith v. Nagy                                  Page 10


decided to sentence a defendant to death after discussing a news account of a different defendant
who had committed murder after being paroled. Thompson, 867 F.3d at 646–49.

       Here, Smith claims that there was an improper external influence on the jury because
jurors allegedly changed their votes from “not guilty” to “guilty” based on the belief that Smith
would receive a relatively light sentence for felony murder. The state trial court, after hearing
arguments by counsel on both sides, denied Smith’s request for a Remmer hearing.                The
Michigan Court of Appeals affirmed the trial court’s ruling, reasoning that Smith had made “no
allegation that a party outside the jury panel approached a member of the jury and provided
information on a possible sentence” and that, moreover, “the possible penalty for conviction has
no bearing on whether the evidence presented at trial could establish each of the necessary
elements of the charged crimes.” Smith, 2009 WL 3837414, at *2. The Michigan Supreme
Court denied discretionary review in a summary order. 779 N.W.2d at 813. We therefore
review the decision of the Michigan Court of Appeals, as it is the last explained state-court
decision. See Wilson v. Sellers, 138 S. Ct. 1188, 1192 (2018); see also Guilmette v. Howes, 624
F.3d 286, 291 (6th Cir. 2010) (en banc) (“We must . . . look to the last reasoned state court
opinion to determine the basis for the state court’s rejection of [the petitioner’s] claim.”). And
because the Michigan Court of Appeals adjudicated Smith’s claim on the merits, we apply
AEDPA’s required deference. See 28 U.S.C. § 2254(d).

       Smith first argues that the Michigan Court of Appeals applied the wrong legal standard,
and thus, its decision is “contrary to” clearly established federal law. In particular, Smith argues
that the state court focused on whether he was entitled to a new trial, rather than on whether he
was entitled to a Remmer hearing at which he would have the opportunity to show he was
entitled to a new trial. It is true that the standard for obtaining a new trial is distinct from the
standard for obtaining a Remmer hearing: a defendant must show actual prejudice to be entitled
to a new trial, whereas the defendant only has to establish some likelihood of prejudice to be
entitled to a Remmer hearing. Phillips, 455 U.S. at 217–18, 221; see also, e.g., Ewing, 914 F.3d
at 1030–31; United States v. Harris, 881 F.3d 945, 953–54 (6th Cir. 2018); Davis, 177 F.3d at
557. Thus, if the Michigan Court of Appeals had held that Smith was not entitled to a Remmer
 No. 18-1751                               Smith v. Nagy                                 Page 11


hearing simply because he had failed to establish actual prejudice, such a decision would have
been contrary to clearly established federal law.

       The crux of the Michigan Court of Appeals’s decision, however, is not that Smith failed
to establish actual prejudice but rather that he failed to allege that the jury’s information on
possible punishment came from a source outside of the jury room.            See Smith, 2009 WL
3837414, at *2. In holding that the information on possible punishment needed to have involved
an outside source, the Michigan Court of Appeals rejected the view that consideration of possible
punishment by the jury is necessarily extraneous. See id.

       Smith argues that the Michigan Court of Appeals “misconstrued,” and thus unreasonably
applied, federal law in concluding that the jury’s consideration of punishment was not
necessarily extraneous. He does not contend that there is a Supreme Court decision establishing
that a jury’s consideration of possible punishment is in itself extraneous or otherwise
unconstitutional, but rather analogizes to decisions from this and other circuits applying Remmer,
Tanner, and their progeny. These decisions are all distinguishable.

       First, Smith points to United States v. Martinez, 14 F.3d 543, 550–52 (11th Cir. 1994),
where the Eleventh Circuit, on direct appeal, reversed the defendant’s convictions and remanded
for a new trial partly because the jury had considered information about the defendant’s possible
sentence. But in Martinez, there was clear indication that the information on sentencing came
from an outside source: a newspaper article that one of the jurors had seen and then discussed in
the jury room. Id. at 547. There is no similar indication in this case. Additionally, the jury in
Martinez had used a dictionary to define terms that arose during deliberations, watched news
accounts of the trial on television, and regularly brought newspapers reporting trial events into
the jury room. Id. at 550. There is no allegation that anything of that sort happened here.

       Second, Smith points to United States v. Herndon, 156 F.3d 629 (6th Cir. 1998). In
Herndon, also a case on direct appeal, we remanded for a Remmer hearing because one of the
jurors allegedly had prior business dealings with the defendant. Id. at 636–38. We held that
such a circumstance constituted an external influence because it “derived from specific
 No. 18-1751                              Smith v. Nagy                                 Page 12


knowledge about or a relationship with either the parties or their witnesses.” Id. at 636. Nothing
indicates that any such knowledge or relationship exists here.

       Third, Smith directs our attention to United States v. Harris, 881 F.3d 945, 952–54 (6th
Cir. 2018), another case on direct appeal where we remanded for a Remmer hearing. In Harris,
although some question remained as to whether actual prejudice existed, there was “credible
evidence” that the live-in girlfriend of one of the jurors had discovered and viewed the
defendant’s LinkedIn profile, likely after searching for the defendant on Google. Id. at 953–54.
Here, in contrast, there is nothing suggesting that the information the jury considered regarding
punishment came from a similar external source.

       For the same reason, the other cases to which Smith calls our attention are
distinguishable. See Ewing, 914 F.3d at 1029–30 (jury allegedly discussed the defendant’s
Facebook profile and used Google to search for information related to the case); Oliver v.
Quarterman, 541 F.3d 329, 339–40 (5th Cir. 2008) (jury allegedly consulted Bible passages in
deciding whether to impose the death sentence); Doan v. Brigano, 237 F.3d 722, 735–36 (6th
Cir. 2001) (juror allegedly conducted an experiment at home to test claims made during the
defendant’s testimony), abrogated on other grounds by Wiggins v. Smith, 539 U.S. 510, 534
(2003); United States v. Aguirre, 108 F.3d 1284, 1288 (10th Cir. 1997) (jury, in deciding
whether to convict the defendant of conspiracy to distribute drugs, allegedly used a dictionary to
look up the meaning of the words “distribution” and “pontificate”). None of the cases that Smith
cites shows that the Michigan Court of Appeals unreasonably applied clearly established federal
law.

       Instead, we find the Fourth Circuit’s decision in Fullwood v. Lee, 290 F.3d 663 (4th Cir.
2002), to be instructive.   In that case, the defendant argued that the jury was improperly
influenced in deciding whether to impose the death penalty because it allegedly became aware of
several pieces of information: (1) the defendant had previously been sentenced to death by
another jury, but the sentence had been reversed; (2) any decision it made would be appealed;
and (3) if it handed down a life sentence, the defendant would be eligible for parole within 10 to
15 years. Id. at 682–83. The Fourth Circuit, on habeas review, concluded that the jury’s
awareness of the defendant’s prior death sentence was necessarily an external influence, even
 No. 18-1751                               Smith v. Nagy                                  Page 13


though the source of the information was never identified, because it “was not revealed to the
jury during trial” and “not the kind of general information that jurors bring with them into
deliberations.” Id. at 682. In contrast, the Fourth Circuit decided that the jury’s awareness of the
defendant’s ability to appeal and the possibility of parole was not necessarily an external
influence because such awareness derived from general information and “preconceived notions
about the legal process.” Id. at 683–84.

       In this case, we find it conceivable that the jurors could have reached the mistaken
conclusion that felony murder carries a relatively light sentence based simply upon preconceived
notions or beliefs about the legal system. In other words, the jurors’ information about Smith’s
possible sentence reasonably falls within the realm of “general information that jurors bring with
them into deliberations.” See id. at 682. Accordingly, it was not unreasonable for the Michigan
Court of Appeals to conclude that the jury’s consideration of punishment was not necessarily
extraneous and that, absent a colorable allegation that the information came from some outside
source, Smith was not entitled to a Remmer hearing.

       Smith, though, makes one final argument. He suggests that he did, in fact, raise a
colorable claim that the specific information the jury considered regarding punishment came
from an outside source. He focuses on one particular statement that his trial counsel made to the
trial judge at the argument on whether to grant an evidentiary hearing:

       The case law is if it was internal consideration, we wouldn’t even be here. It has
       to be something that is external to the jury, and their deliberations. It’s not that
       they talked about something inside, [it’s] that they had something from outside
       that was introduced.

(R. 12-6, PageID 612.) Based on this statement, Smith contends that his trial counsel raised a
colorable claim that the information regarding possible punishment came from an outside source.
But trial counsel’s statements at other points in the argument suggest otherwise. Indeed, at the
beginning of the argument, trial counsel plainly stated, “We would submit the extrinsic influence
here was penalty that was discussed improperly by the jury.”           (Id., PageID 609.)     Thus,
examining trial counsel’s argument as a whole, we find that it was not unreasonable for the
Michigan Court of Appeals to conclude that Smith failed to allege an outside source and,
 No. 18-1751                                Smith v. Nagy                                  Page 14


therefore, failed to make a colorable claim of extraneous influence. We affirm the district
court’s denial of habeas relief with respect to Smith’s claim of jury bias.

                                                 B.

        Smith’s next claim for relief is that his convictions for felony murder and assault rest on
insufficient evidence.   Specifically, he argues that there was insufficient evidence both to
identify him as the perpetrator and to establish intent to commit a felony—in this case, larceny.
The warden, as an initial matter, asserts that Smith did not exhaust part of this claim because he
did not present to the state courts the specific argument that there was insufficient evidence of his
intent to commit a larceny. Our disposition of Smith’s claim, however, does not require us to
decide this exhaustion issue. Therefore, we proceed directly to the merits. See 28 U.S.C.
§ 2254(b)(2) (“An application for a writ of habeas corpus may be denied on the merits,
notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the
State.”).

        It is well established that the Due Process Clause of the Fourteenth Amendment “protects
the accused against conviction except upon proof beyond a reasonable doubt of every fact
necessary to constitute the crime with which he [or she] is charged.” In re Winship, 397 U.S.
358, 364 (1970). In evaluating a claim that a defendant has been convicted based on insufficient
evidence, we consider “whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” Jackson v. Virginia, 443 U.S. 307, 319 (1979). This standard
“must be applied with explicit reference to the substantive elements of the criminal offense as
defined by state law.” Id. at 324 n.16. “[W]e do not reweigh the evidence, re-evaluate the
credibility of witnesses, or substitute our judgment for that of the jury.” Brown v. Konteh, 567
F.3d 191, 205 (6th Cir. 2009).

        Additionally, where, as here, the state court adjudicated the claim on the merits, there is a
second layer of deference mandated by AEDPA. That is, even if we were to conclude that no
rational trier of fact could have found the defendant guilty beyond a reasonable doubt, we “must
 No. 18-1751                               Smith v. Nagy                                   Page 15


still defer to the state appellate court’s sufficiency determination as long as it is not
unreasonable.” Id. (emphasis omitted).

       The Michigan Court of Appeals determined that, viewing the evidence in the light most
favorable to the prosecution, “a rational trier of fact could find that the essential elements of the
crime were proven beyond reasonable doubt” in Smith’s case. Smith, 2009 WL 3837414, at *4.
The court reasoned that, as a general matter, “circumstantial evidence and the reasonable
inferences it engenders are sufficient to support a conviction, provided the prosecution meets its
burden of proof.” Id. It concluded that the circumstantial evidence in this case—namely, the
testimony from Dennis and Evans—was sufficient to support Smith’s convictions, and it
declined to “second-guess” the jury’s determination that Dennis and Evans were credible. Id.

       Smith argues that the testimony from Dennis and Evans, even viewed in the light most
favorable to the prosecution, could not engender a reasonable inference that Smith killed Ralston
with the intent to commit a larceny. Smith gives several reasons: Ralston had no safe in her
house and did not live at a drug safe house; she had no money; and nothing of value, including
Ralston’s jewelry box, was taken from the house.

       These arguments, however, are reasons to reweigh the testimony of Dennis and Evans,
not to conclude that such evidence is insufficient. According to Dennis and Evans, Smith
confessed to killing a woman in her fifties while attempting to rob her house, and Ralston’s son
and housemate both confirmed that Smith was at the house on the evening before Ralston’s body
was discovered. Smith now provides reasons that the jury could have disbelieved or discounted
Dennis’s and Evans’s testimony as inconsistent with other evidence in the record. But a court
evaluating a claim of insufficient evidence is not at liberty to reweigh the evidence or reassess
the credibility of witnesses. Brown, 567 F.3d at 205; see also Martin v. Mitchell, 280 F.3d 594,
618 (6th Cir. 2002) (“[A]ttacks on witness credibility are simply challenges to the quality of the
government’s evidence and not to the sufficiency of the evidence.” (quoting United States v.
Adamo, 742 F.2d 927, 935 (6th Cir. 1984))). Given that the Michigan Court of Appeals had to
resolve all conflicts in favor of the prosecution and accept the jury’s determination that Dennis
and Evans were credible, it was not unreasonable for that court to conclude that a rational juror
 No. 18-1751                               Smith v. Nagy                                Page 16


could have convicted Smith. Therefore, we affirm the district court’s denial of habeas relief with
respect to Smith’s claim of insufficient evidence.

                                                C.

       Last, Smith claims that the state and district courts erred in refusing to consider the
affidavit of Robert Evans.

                                                1.

       We start by clarifying what it is that Smith is claiming. Smith refers to his claim as one
of “actual innocence” and cites to the Supreme Court’s decision in Schlup v. Delo, 513 U.S. 298
(1995). But the claim recognized in Schlup “is procedural, rather than substantive,” meaning
that it “does not by itself provide a basis for relief.” Id. at 314–15. Rather, a Schlup claim
provides a “gateway” for the habeas petitioner “to have his [or her] otherwise barred
constitutional claim considered on the merits.” Id. at 315 (quoting Herrera v. Collins, 506 U.S.
390, 404 (1993)).     Smith does not identify any substantive federal constitutional claim
underlying his alleged “actual innocence” claim. Thus, his claim is not a “gateway” actual
innocence claim under Schlup.

       Smith’s claim also cannot be reviewed as a supplemental sufficiency-of-the-evidence
claim. Smith tried to raise such a claim in his amended petition before the district court,
asserting that “based on newly discovered evidence, there was insufficient evidence to sustain
[his] convictions for felony-murder and assault with intent to rob while armed beyond a
reasonable doubt.” (R. 38, PageID 906.) Smith argued that this claim of newly discovered
evidence “should be addressed together” with his separate sufficiency-of-the-evidence claim—
essentially arguing that the affidavit makes the already shaky evidence upon which he was
convicted even shakier. (Id., PageID 907.) But a reviewing court evaluating a sufficiency-of-
the-evidence claim cannot consider newly discovered evidence. Rather, the court must consider
“the trial testimony and exhibits in the light most favorable to the prosecution,” and may not
reassess the weight of the evidence or the credibility of witnesses. Brown, 567 F.3d at 205; see
also Jackson, 443 U.S. 318–19; cf. Schlup, 513 U.S. at 330 (distinguishing between a claim of
insufficient evidence under Jackson, which prohibits assessments of witness credibility, and a
 No. 18-1751                               Smith v. Nagy                                  Page 17


gateway actual innocence claim under Schlup, which allows such assessments based on newly
presented evidence).     Because Smith’s claim of newly discovered evidence requires the
reviewing court to reweigh evidence and make a probabilistic determination of what a reasonable
trier of fact likely would do, it cannot be assessed as a supplemental sufficiency-of-the-evidence
claim.

         We accordingly agree with the district court that Smith’s claim based on the affidavit of
Robert Evans is a freestanding actual innocence claim. The Supreme Court has defined a
freestanding actual innocence claim as one that “argues that [the petitioner] is entitled to habeas
relief because newly discovered evidence shows that [the petitioner’s] conviction is factually
incorrect.” Herrera, 506 U.S. at 404. Smith’s claim based on the affidavit is exactly that.

                                                 2.

         Next, we turn to the warden’s arguments that Smith’s claim is untimely and procedurally
defaulted. The warden argues that because Smith’s claim based on the affidavit was not raised in
federal court until Smith amended his petition in December 2017, and because the claim was not
otherwise tolled, it is barred under the one-year statute of limitations.          See 28 U.S.C.
§ 2244(d)(1). The warden also argues that because the state court relied on state procedural
grounds to deny Smith’s claim for a new trial based on the affidavit, Smith’s claim here is
procedurally barred. The district court acknowledged the warden’s procedural arguments but
decided to deny Smith’s claim on the merits.

         Although issues of timeliness and procedural default in habeas proceedings ordinarily
should be addressed first, those issues do not affect our jurisdiction. Day v. McDonough, 547
U.S. 198, 205 (2006); Trest v. Cain, 522 U.S. 87, 89 (1997). Therefore, we may sometimes
reach the merits of a petitioner’s claim, particularly when the merits are easily resolvable against
the petitioner while the procedural issues are complicated. See Lambrix v. Singletary, 520 U.S.
518, 525 (1997); see also, e.g., Bales v. Bell, 788 F.3d 568, 573 (6th Cir. 2015); Mahdi v. Bagley,
522 F.3d 631, 635 (6th Cir. 2008); Hudson v. Jones, 351 F.3d 212, 215–16 (6th Cir. 2003).
Here, resolution of the procedural issues is not necessary to our disposition of Smith’s
 No. 18-1751                                Smith v. Nagy                                  Page 18


freestanding actual innocence claim, and we agree with the district court that the claim is better
resolved on the merits. We turn there now.

                                                 3.

       The Supreme Court has not answered whether freestanding actual innocence claims are
cognizable on habeas review. See House v. Bell, 547 U.S. 518, 555 (2006) (expressly declining
to resolve the issue). Our circuit, however, has “repeatedly indicated that such claims are not
cognizable on habeas.” Cress v. Palmer, 484 F.3d 844, 854 (6th Cir. 2007) (listing cases).
Smith nevertheless invites us to resolve this question in his favor.

       Even if we were to recognize a freestanding actual innocence claim, Smith’s claim based
on the affidavit would not succeed. The Supreme Court has noted that if freestanding actual
innocence claims were cognizable, the petitioner’s burden “would necessarily be extraordinarily
high.” Herrera, 506 U.S. at 417. This is because such a claim, unattached to any other claim of
constitutional error, presupposes that the petitioner “was tried before a jury of his [or her] peers,
with the full panoply of protections that our Constitution affords criminal defendants.” Id. at 419
(O’Connor, J., concurring). Accordingly, the Ninth Circuit has established that a petitioner
asserting a freestanding actual innocence claim “must go beyond demonstrating doubt about his
[or her] guilt” and “must affirmatively prove that he [or she] is probably innocent.” Carriger v.
Stewart, 132 F.3d 463, 476 (9th Cir. 1997) (en banc).

       Without the ability to make credibility determinations, we conclude that Smith does not
prove that he is probably innocent.       To be sure, the affidavit of Robert Evans seriously
undermines the reliability of Dennis’s and Evans’s testimony, but it falls short of affirmatively
proving that Smith is innocent. The affidavit does not provide Smith with an alibi, show that
someone else killed Ralston, or otherwise “preclude any possibility of [Smith’s] guilt.” See id. at
477. Instead, it simply gives us further reason to doubt Dennis’s and Evans’s testimony. Thus,
Smith’s claim based on the affidavit of Robert Evans is not a basis on which we can grant him
habeas relief.
 No. 18-1751                              Smith v. Nagy                                 Page 19


                                               IV.

       For the reasons above, we affirm the district court’s denial of Smith’s petition for a writ
of habeas corpus.
