Gerald Von Tobel v. James Benedetti ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD VON TOBEL, No. 18-15892
Petitioner-Appellant,
D.C. No.
v. 3:10-cv-00073-
LRH-VPC
JAMES BENEDETTI; ATTORNEY
GENERAL FOR THE STATE OF
NEVADA, OPINION
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted December 2, 2019
San Francisco, California
Filed September 14, 2020
Before: Eugene E. Siler, * Jay S. Bybee, and
Ryan D. Nelson, Circuit Judges.
Opinion by Judge Siler
*
The Honorable Eugene E. Siler, United States Circuit Judge for the
U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
2 VON TOBEL V. BENEDETTI
SUMMARY **
Habeas Corpus
The panel withdrew a memorandum disposition filed
January 9, 2020; filed a published opinion affirming the
district court’s denial of Nevada state prisoner Gerald Von
Tobel’s habeas corpus petition; denied a petition for
rehearing; and denied on behalf of the court a petition for
rehearing en banc, in a case in which a juror, during the trial,
had a conversation with a police-officer neighbor who told
the juror something to the effect that a defendant in a
criminal trial would not be there if he had not done
something wrong.
Von Tobel contended that the test used by the Nevada
Supreme Court to evaluate juror misconduct in his case was
“contrary to, or involved an unreasonable application of,
clearly established Federal law,” 28 U.S.C. § 2254(d)(1),
because it placed a more onerous burden on him to prove
prejudice than under the applicable Supreme Court
precedent and because it did not presume that the contact
was prejudicial.
The panel observed that there was no decision of the
United States Supreme Court that precludes the Nevada
Supreme Court from requiring the petitioner to show a
reasonable probability or likelihood that the contact affected
the verdict. Applying AEDPA’s highly deferential standard,
the panel therefore concluded that the Nevada Supreme
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
VON TOBEL V. BENEDETTI 3
Court’s test to evaluate juror misconduct—and the
application of it in this case—is not contrary to, nor does it
involve an unreasonable application of, clearly established
Federal law.
COUNSEL
Kimberly Sandberg (argued), Jonathan Kirshbaum, and
Ryan Norwood, Assistant Federal Public Defenders; Rene
L. Valladares, Federal Public Defender; Office of the
Federal Public Defender, Las Vegas, Nevada; for Petitioner-
Appellant.
Natasha M. Gebrael (argued) and Ashley A. Balducci,
Deputy Attorneys General; Aaron D. Ford, Attorney
General, Office of the Attorney General, Las Vegas,
Nevada; for Respondents-Appellees.
ORDER
The memorandum disposition filed January 9, 2020 is
withdrawn. A published opinion authored by Judge Siler is
filed concurrently with this order.
The panel judges have voted to deny appellant’s petition
for rehearing.
Judge R. Nelson voted to deny the petition for rehearing
en banc, and Judges Siler and Bybee recommended denying
the petition for rehearing en banc.
4 VON TOBEL V. BENEDETTI
The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. Fed. R. App. P. 35.
Appellant’s petition for rehearing and petition for
rehearing en banc, filed March 24, 2020, is DENIED.
OPINION
SILER, Circuit Judge:
Gerald Von Tobel, a Nevada state prisoner, appeals from
the district court’s denial of his petition for a writ of habeas
corpus. During Von Tobel’s trial, one of the jurors had a
conversation with a neighbor who is a police officer about
difficulties the juror was having in the case. Sometime
during the conversation, the police officer neighbor told the
juror something to the effect that a defendant in a criminal
trial would not be there if he had not done something wrong.
In evaluating this contact on direct appeal, the Nevada
Supreme Court applied its own test for evaluating juror
misconduct and concluded that Von Tobel had not met his
burden to show prejudice. In his petition for a writ of habeas
corpus, Von Tobel contends that the test used by the Nevada
Supreme Court to evaluate juror misconduct in his case was
“contrary to, or involved an unreasonable application of,
clearly established Federal law,” 28 U.S.C. § 2254(d)(1),
because it placed a more onerous burden on him to prove
prejudice than under the applicable Supreme Court
precedent and because it did not presume that the contact
was prejudicial. We hold that the Nevada Supreme Court’s
test to evaluate juror misconduct—and the application of it
in Von Tobel’s case—is not contrary to, nor does it involve
VON TOBEL V. BENEDETTI 5
an unreasonable application of, clearly established Federal
law and we affirm the district court’s denial of Von Tobel’s
habeas petition.
I.
Von Tobel was convicted in 2005 of numerous counts of
physical and sexual abuse of his girlfriend’s three children.
At trial, the only direct evidence of abuse was the testimony
of the children. Their testimony included some
inconsistencies, such as not remembering incidents of abuse
that they had previously disclosed. Von Tobel testified and
denied the allegations.
The jury deliberated across four days for a total of around
twenty hours. During deliberations, the jury sent several
notes to the judge indicating they were having trouble
reaching a verdict on some of the charges. Each time the
judge instructed them to continue deliberating. The jury
eventually reached a unanimous verdict on all counts,
finding Von Tobel guilty on twenty-five counts (one of
which was not guilty but guilty of a lesser offense) and not
guilty on one count. 1
After the jury was released, the judge invited them to
“stay and chat” with the attorneys to “discuss the case.”
When asked what factors in the case had an impact on the
verdict, Juror No. 200 stated: “It’s like my neighbor, who is
a cop, always says, ‘[h]e wouldn’t be here if he didn’t do
something.’” This comment resulted in a motion for a new
trial and an evidentiary hearing.
1
In addition, one count had been previously withdrawn by the State.
6 VON TOBEL V. BENEDETTI
At the evidentiary hearing, Juror No. 200 was called as a
witness. He clarified that the conversation with his neighbor
occurred during trial, prior to deliberations. Juror No. 200
said that he barely knew his neighbor and that he believed
that his neighbor worked for a different police department
than the one involved in the case. Juror No. 200 explained
that the conversation with his neighbor occurred when he
went out to the community mailbox in his neighborhood and
ran into his neighbor. He told the neighbor “[y]ou know, I
don’t know how you put up with this stuff that you have to
do with.” The neighbor replied “oh[] [i]t’s just [what] you
have to do.” Juror No. 200 then said that he was on jury duty
and having a tough time because “stuff that’s going on here
that just makes me sick. Matter of fact, I have a hard time
sleepin’ with it as a result of it.” During the conversation,
the neighbor told Juror No. 200 about an unrelated case in a
different jurisdiction where “a kid got killed in a gang
something or other” and some people had already “plead out
[and were] serving time while others were waiting to go to
Court.” Sometime during the conversation—Juror No. 200
does not remember when—the neighbor said something to
the effect of “if they’re here, they’re here for a reason” or
that “[h]e wouldn’t be here if he didn’t do something.”
During the evidentiary hearing, Juror No. 200 stated that
he: (1) understood the presumption of innocence and that it
applied to Von Tobel; (2) did not make up his mind about
Von Tobel’s guilt before deliberations; and (3) changed his
mind several times about Von Tobel’s guilt during
deliberations. Regarding the conversation with his neighbor,
Juror No. 200 said that: (1) it did not affect his ability to keep
an open mind while hearing the evidence; (2) he did not
conclude from his neighbor’s comment that Von Tobel must
have done something otherwise he would not be in court;
VON TOBEL V. BENEDETTI 7
and (3) the conversation had no influence on his thought
process, on how he viewed the evidence, or on the verdict.
The court found that Juror No. 200 violated the court’s
order not to discuss the case. But the court denied Von
Tobel’s motion for a new trial, explaining that Juror No. 200
“never swayed in his belief that he was obligated to listen to
the facts and the evidence in this case, and render a verdict
only after he listened to all of the witnesses, saw all of the
evidence, and began deliberation with his fellow jurors.”
The court added that Juror No. 200 “never wa[i]vered with
respect to the presumption of innocence,” did not have a
preconceived idea about Von Tobel’s guilt, and that the
conversation with his neighbor “did not affect his belief or
reliance upon the presumption of innocence.” Finally, the
court concluded that there was no evidence that Juror No.
200 discussed the nature of the case with his neighbor, or
that the conversation had any influence on the determination
of guilt or on the presumption of innocence.
On appeal, the Nevada Supreme Court conducted a de
novo review of the trial court’s decision. The test for
allegations of juror misconduct in Nevada comes from
Meyer v. State, 80 P.3d 447 (Nev. 2003). Under it, a motion
for a new trial based on allegations of juror misconduct has
the burden to show that (1) the misconduct occurred and
(2) the misconduct prejudiced the defendant. Id. at 455.
When the misconduct is egregious, the Nevada Supreme
Court applies a conclusive presumption of prejudice without
any showing of prejudice. Id. When the misconduct is not
egregious, the defendant must prove prejudice by showing
that, in reviewing the trial as a whole, there was “a
reasonable probability or likelihood that the juror
misconduct affected the verdict.” Id. at 456.
8 VON TOBEL V. BENEDETTI
The Nevada Supreme Court found that Juror No. 200
committed misconduct. Von Tobel v. State, No. 45684, at *3
(Nev. Feb. 29, 2008). But it determined that this was not an
egregious case—triggering the conclusive presumption of
prejudice—because Juror No. 200 did not discuss the facts
of the case with his neighbor. Id. As a non-egregious case,
Von Tobel had the burden to show prejudice. Id. The
Nevada Supreme Court concluded that Von Tobel failed to
show a reasonable probability that exposure to the
neighbor’s opinion affected the verdict because: (1) the
conversation did not include any details of the case; (2) jury
instructions occurred after the conversation; and (3) the jury
was instructed on the presumption of innocence and jurors
are presumed to have followed the judge’s instructions. Id.
at 4–5.
Von Tobel filed a habeas petition in the district court
arguing that the Nevada Supreme Court’s test from Meyer—
both itself and as applied here—was contrary to clearly
established federal law. Specifically, we have held that a test
derived from two Supreme Court cases from 1892 and 1954
constitutes clearly established federal law for evaluating a
juror’s contact with an outside party. Godoy v. Spearman,
861 F.3d 956, 964 (9th Cir. 2017) (en banc); see Remmer v.
United States, 347 U.S. 227 (1954); Mattox v. United States,
146 U.S. 140 (1892). Thus, Von Tobel contended that the
Meyer test itself and as applied to him was contrary to, or an
unreasonable application of, Mattox and Remmer because it
placed a more onerous burden on him to prove prejudice and
it did not presume that Juror No. 200’s contact with his
neighbor was prejudicial.
The district court reviewed the burden on the defendant
under Meyer and under Mattox/Remmer and found them
similar enough that Meyer was not clearly contrary to
VON TOBEL V. BENEDETTI 9
Mattox/Remmer. The district court also found that no
contrary decision of the Supreme Court prevented the
Nevada Supreme Court from concluding that Juror No.
200’s contact with his neighbor was non-egregious—thus
not triggering a presumption of prejudice. Finally, the
district court noted that Godoy approvingly cited Tarango v.
McDaniel, 837 F.3d 936 (9th Cir. 2016)—and a footnote in
Tarango, 837 F.3d at 950 n.13, can be read as suggesting
that that the Meyer test is compatible with clearly established
federal law—undercutting the contention that at the time of
the Nevada Supreme Court’s decision in 2008, Meyer was
clearly incompatible with Mattox/Remmer.
II.
A district court’s denial of a petition for habeas corpus
under 28 U.S.C. § 2254 is reviewed de novo. Dows v. Wood,
211 F.3d 480, 484 (9th Cir. 2000). A federal court cannot
grant a petition for habeas corpus to a prisoner in state
custody for a claim that was adjudicated on the merits in state
court unless the adjudication of the claim (1) “resulted in a
decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as
determined by the Supreme Court of the United States” or
(2) “resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.” 28 U.S.C. § 2254(d). A state
court decision is “contrary to” Supreme Court precedent “if
the state court arrives at a conclusion opposite to that reached
by [the Supreme] Court on a question of law or if the state
court decides a case differently than [the Supreme] Court has
on a set of materially indistinguishable facts.” Williams v.
Taylor, 529 U.S. 362, 412–13 (2000). “An unreasonable
application of clearly established federal law must be
‘objectively unreasonable, not merely wrong; even clear
10 VON TOBEL V. BENEDETTI
error will not suffice.’” Rowland v. Chappell, 876 F.3d
1174, 1181 (9th Cir. 2017) (quoting White v. Woodall,
572 U.S. 415, 419 (2014)). Rather, “a state prisoner must
show that the state court’s ruling on the claim being
presented in federal court was so lacking in justification that
there was an error well understood and comprehended in
existing law beyond any possibility for fairminded
disagreement.” Id. (quoting Woodall, 572 U.S. at 419–20).
“If Supreme Court precedent does not provide a ‘clear
answer to the question presented,’ the state court’s decision
cannot be contrary to, or have unreasonably applied, clearly
established federal law.” Turner v. McEwen, 819 F.3d 1171,
1176 (9th Cir. 2016) (quoting Wright v. Van Patten, 552 U.S.
120, 126 (2008) (per curiam)).
We review “the last reasoned state court decision to
address the claim[s].” White v. Ryan, 895 F.3d 641, 665 (9th
Cir. 2018). Here, the last such decision is the Nevada
Supreme Court’s denial of Von Tobel’s direct appeal.
A.
After the Nevada Supreme Court’s decision in this case,
this court recognized that a two-part test derived from two
Supreme Court cases—Remmer and Mattox—constitutes
clearly established federal law for analyzing improper
contacts between jurors and outside parties. See Godoy,
861 F.3d at 964. Von Tobel contends that the test from
Meyer, used by the Nevada Supreme Court to evaluate the
contact between Juror No. 200 and his neighbor is contrary
to, or an unreasonable application of, the Mattox/Remmer
test. It is not.
The Nevada Supreme Court did not use the
Mattox/Remmer framework to analyze the contact between
Juror No. 200 and his neighbor. Neither case is cited in its
VON TOBEL V. BENEDETTI 11
opinion, but this is not required. See Early v. Packer,
537 U.S. 3, 8 (2002) (per curiam). Instead, it applied its own
test for analyzing juror misconduct, such as a juror’s having
contact with a third-party, which it developed in Meyer. 2
Under Meyer, the defendant must show that the misconduct
(1) occurred and (2) prejudiced him. 80 P.3d at 455. To
show prejudice, the defendant must show that “there is a
reasonable probability or likelihood that the juror
misconduct affected the verdict.” Id. In egregious cases,
such as jury tampering, prejudice is conclusively presumed
without the defendant’s having to show prejudice; in non-
egregious cases, the defendant has the burden to show
prejudice. Id. at 455–56.
Because of the obvious structural differences between
these two tests, we begin by comparing them before
considering the defendant’s burden under each. The first
step of the Meyer test—that the misconduct occurred—is not
explicitly part of the Mattox/Remmer framework. Instead it
is an implicit “step zero” in the analysis because
Mattox/Remmer step one presupposes that there was a
contact, since it asks “whether the contact was ‘possibly
prejudicial.’” See Godoy, 861 F.3d at 962 (quoting Mattox,
146 U.S. at 150). Thus, Meyer step one is consistent with
the Mattox/Remmer framework.
The second step of Meyer—that the misconduct
prejudiced the defendant—differs depending on whether the
extrinsic influence on the juror was egregious or not. If
egregious, prejudice is conclusively presumed and the
defendant does not have to make any showing of prejudice.
Meyer, 80 P.3d at 455. If not egregious, the burden is on the
2
Meyer cites to Remmer but not Mattox. See Meyer, 80 P.3d at 455
n.23, n.26.
12 VON TOBEL V. BENEDETTI
defendant to show “a reasonable probability or likelihood
that the juror misconduct affected the verdict.” Id. Meyer
step two, then, is analogous to Mattox/Remmer step one as
they both ask whether there was prejudice. Meyer’s placing
the burden on the defendant to show prejudice is consistent
with Mattox/Remmer. See Remmer, 347 U.S. at 228–29 (not
specifically addressing who has the burden but stating that
the defendant submitted evidence in support of his motion);
Mattox, 146 U.S. at 142 (same); see also Godoy, 861 F.3d
at 967 (stating that the defendant must present evidence of a
prejudicial contact at step one).
Von Tobel contends that Meyer is contrary to
Mattox/Remmer because it placed a more onerous burden on
him to show prejudice. Von Tobel misreads Meyer. Meyer
only requires the petitioner to show “a reasonable probability
or likelihood that the juror misconduct affected the verdict”
in order to prevail on a motion for a new trial. 80 P.3d
at 455. The Nevada Supreme Court had defined a
reasonable probability as a “probability sufficient to
undermine confidence in the outcome.” Lobato v. State,
96 P.3d 765, 772 (Nev. 2004) (quoting Strickland v.
Washington, 466 U.S. 668, 694 (1984)). In Godoy, we
described the petitioner’s burden under Mattox/Remmer as
requiring the petitioner to present “evidence of an external
contact that has a tendency to be injurious to the defendant”
or “evidence of a contact sufficiently improper as to raise a
credible risk of affecting the outcome of the case.” 861 F.3d
at 967 (internal quotation marks and citations omitted). “[A]
probability sufficient to undermine confidence in the
outcome,” Lobato, 96 P.3d at 772, is similar to “rais[ing] a
credible risk of affecting the outcome,” Godoy, 861 F.3d at
967. And, most importantly, neither Mattox nor Remmer
precisely delineates the petitioner’s burden. So, even if the
burdens under Meyer and Godoy are different, there was no
VON TOBEL V. BENEDETTI 13
decision of the Supreme Court that precludes the Nevada
Supreme Court from requiring the petitioner to show a
reasonable probability or likelihood that the contact affected
the verdict. See Wright v. Van Patten, 552 U.S. 120, 126
(2008) (per curiam) (stating that Supreme Court cases must
give a “clear answer to the question presented” to be clearly
established federal law).
1.
We emphasize that what we have said beyond what the
Supreme Court has held to “refine or sharpen” a defendant’s
burden is not clearly established Federal law. Lopez v.
Smith, 574 U.S. 1, 7 (2014) (per curiam) (quoting Marshall
v. Rodgers, 569 U.S. 58, 64 (2013) (per curiam)). Our
various formulations of Mattox/Remmer step one to require
that the contact “raise[] a risk of,” Caliendo v. Warden of
Cal. Men’s Colony, 365 F.3d 691, 697 (9th Cir. 2004), “raise
a credible risk of,” Tarango, 837 F.3d at 947, or be
“sufficiently improper as to raise a credible risk of,” Godoy,
861 F.3d at 967, “influencing the verdict” or “affecting the
outcome of the case,” Godoy, 861 F.3d at 967, do not appear
in Mattox/Remmer or any Supreme Court precedent and are
thus not clearly established Federal law. See Parker v.
Matthews, 567 U.S. 37, 48–49 (2012) (per curiam). As a
result, Von Tobel cannot invoke our more precise
formulations of the defendant’s burden to claim that the
Nevada Supreme Court’s formulation is more onerous than
our formulation, and thus contrary to Mattox/Remmer. See
id.; Smith, 574 U.S. at 6–7.
Mattox does not make clear how much of a “tendency. . .
[to be] injurious to the defendant” is required; that is, how
certain or likely prejudice has to be for the defendant to meet
his burden. 146 U.S. at 150. As a result, a defendant’s
burden under Meyer falls within the range allowed by
14 VON TOBEL V. BENEDETTI
Supreme Court precedent. There is no clearly established
Supreme Court precedent which holds that a defendant’s
burden to show that a contact was “possibly prejudicial” is
less onerous than “a reasonable probability or likelihood that
the juror misconduct affected the verdict,” Meyer, 80 P.3d at
455, or “a probability sufficient to undermine confidence in
the outcome,” Lobato, 96 P.3d at 772 (quoting Strickland,
466 U.S. at 694).
Our cases further articulating the defendant’s burden
confirm this conclusion. We believe our explanations of the
defendant’s burden under Mattox/Remmer are consistent
with, and faithful interpretations of, Supreme Court
precedent. In explaining the defendant’s burden, we have
repeatedly recognized the contribution that Smith v. Phillips,
455 U.S. 209 (1982), has made to the Mattox/Remmer
framework at step one. 3 See Caliendo, 365 F.3d at 696; see
also Clark v. Chappell, 936 F.3d 944, 970 (9th Cir. 2019);
Godoy, 861 F.3d at 967; Tarango, 837 F.3d at 947. Our
cases addressing the defendant’s burden largely focus on
incorporating Phillips into step one of the framework. See
Clark, 936 F.3d at 944 (citing Phillips before concluding that
a defendant is required to show a “sufficiently improper”
contact that “gives rise to a ‘credible risk of affecting the
outcome of the case’” (quoting Godoy, 861 F.3d at 967));
Godoy, 861 F.3d at 967 (reviewing Phillips before
formulating the defendant’s burden as requiring the
3
That Phillips affected the Mattox/Remmer framework is consistent
with our statement in Godoy that “[Phillips] left Mattox and Remmer
intact.” Godoy, 861 F.3d at 964 n.3. In that footnote, we were
considering whether the Mattox/Remmer two-step framework continued
to exist post-Phillips. Id. We held that the framework still existed. Id.
We certainly did not hold that Phillips had no effect on the framework
in the footnote, as we also relied on Phillips to clarify the defendant’s
step-one burden. Id. at 967.
 VON TOBEL V. BENEDETTI 15
defendant to “present evidence of a contact sufficiently
improper as to raise a credible risk of affecting the outcome
of the case”); Tarango, 837 F.3d at 936 (noting Phillips
before concluding that “‘prosaic kinds of jury misconduct’
do not trigger a presumption of prejudice” (quoting Dutkel,
192 F.3d at 894–95)); Caliendo, 365 F.3d at 696–97
(reviewing Phillips and another case as support for the
conclusion that a defendant must show that the contact
“raises a risk of influencing the verdict”). After providing
several variations of the defendant’s burden, in Godoy we
settled on requiring a defendant to show that the contact was
“sufficiently improper as to raise a credible risk of affecting
the outcome of the case,” or of “influencing the verdict.”
Godoy, 861 F.3d at 967, 970. Our standard thus falls
between requiring more than a theoretical possibility of
prejudice and less than actual prejudice.
The burden under Meyer is not contrary to
Mattox/Remmer. Indeed, it is nearly identical to our
formulation of Mattox/Remmer. Both tests look at the effect
of the contact on the verdict or outcome. Compare Meyer,
80 P.3d at 455 (whether the contact “affected the verdict”);
and Lobato, 96 P.3d at 772 (whether the contact
“undermine[d] confidence in the outcome”); with Godoy,
861 F.3d at 967 (whether the contact has a risk of
“influencing the verdict” or “affecting the outcome of the
case” (quoting Tarango, 837 F.3d at 947)). And both tests
require a similar level of certainty that there was prejudice.
Compare Meyer, 80 P.3d at 455 (“reasonable probability or
likelihood”) and Lobato, 96 P.3d at 772 (“a probability
sufficient to”); with Godoy, 861 F.3d at 967 (“sufficiently
improper as to raise a credible risk”).
16 VON TOBEL V. BENEDETTI
2.
Von Tobel’s reliance on the relationship between the
defendant’s burden under Meyer and the test from Strickland
is misplaced. Meyer requires a defendant to show “a
reasonable probability or likelihood that the juror
misconduct affected the verdict,” Meyer, 80 P.3d at 455, and
the Nevada Supreme Court’s definition of a “reasonable
probability” comes from Strickland. Because the Supreme
Court has said that “[s]urmounting Strickland ’s high bar is
never an easy task,” Padilla, 559 U.S. at 371, Von Tobel
argues that his burden under Meyer must also be a “high
bar,” and thus is contrary to the “low threshold” under
Mattox/Remmer. To begin with, although we have said that
the defendant’s burden under Mattox/Remmer is a “low
threshold,” that description is our own and not attributable
to the Supreme Court. Caliendo, 365 F.3d at 697 (stating
that “the Mattox rule applies when an unauthorized
communication with a juror crosses a low threshold to create
the potential for prejudice” without citing to any Supreme
Court precedent for that description). But even if it were, we
cannot say that the burden under Meyer is inconsistent with
this pronouncement.
The principal problem with Von Tobel’s Strickland
argument is that he conflates the Strickland test as a whole
with a part of it. To establish ineffective assistance of
counsel under Strickland, “a defendant must show both
deficient performance by counsel and prejudice.” Knowles
v. Mirzayance, 556 U.S. 111, 122 (2009). On the deficient
performance prong, a defendant must show that his or her
“counsel’s representation fell below an objective standard of
reasonableness.” Strickland, 466 U.S. at 688. On the
prejudice prong, a defendant must show “a reasonable
probability that, but for counsel’s unprofessional errors, the
VON TOBEL V. BENEDETTI 17
result of the proceeding would have been different.” Id. at
694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Id. The Nevada
Supreme Court’s definition of “reasonable probability” is
the same and that definition comes from Strickland. See
Lobato, 96 P.3d at 772. But it is not the “reasonable
probability” standard in the prejudice prong that makes
“[s]urmounting Strickland’s high bar [] never an easy task.”
Padilla, 559 U.S. at 371. Rather, the highly deferential
review courts are to give counsel’s performance and the
likelihood that attorney error would be harmless in a
particular case make it difficult to surmount. See id. at 371–
72 (citing these parts of the Strickland test as support for the
statement that Strickland is a high bar). Thus, on the
prejudice prong, it is not the requirement that the defendant
show a “reasonable probability” that makes it hard to meet;
instead, it is what the defendant must show a “reasonable
probability” of—“that, but for counsel’s unprofessional
errors, the result of the proceeding would have been
different,” Strickland, 466 U.S. at 694. Thus, it is the other
parts of the test and the test as a whole, not the reasonable
probability standard, which makes Strickland such a high
standard. As a result, that the definition of reasonable
probability originates from Strickland does not lead to the
conclusion that the defendant’s burden is not a low threshold
or that the defendant’s burden must be contrary to
Mattox/Remmer.
Therefore, under AEDPA’s “highly deferential
standard,” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam) (quoting Lindh v. Murphy, 521 U.S. 320, 333 n.7
(1997)), we cannot say that requiring the petitioner to show
“a reasonable probability or likelihood that [the contact]
affected the verdict” is contrary to, or involves an
18 VON TOBEL V. BENEDETTI
unreasonable application of, Supreme Court precedent, Van
Patten, 442 U.S. at 126.
B.
Even considering Von Tobel’s argument without his
having conflated the two presumptions of prejudice—that
the Nevada Supreme Court unreasonably applied
Mattox/Remmer in his case because it did not find that he
had met his step one burden to show possible prejudice—he
cannot meet his burden under AEDPA to show that
Mattox/Remmer were unreasonably applied. See Rowland,
876 F.3d at 1181 (requiring a state court prisoner to show
that “the state court’s ruling on the claim being presented in
federal court was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement”
(quoting Woodall, 572 U.S. at 419–20)). We have provided
that, to determine whether the defendant has met his or her
burden to show possible prejudice, courts can consider a
variety of factors, including: (1) whether the communication
concerned the case; (2) the length and nature of the contact;
(3) the identity and role at trial of the parties involved;
(4) evidence of the actual impact on the juror; and (5) the
possibility of eliminating prejudice through limiting
instructions. Caliendo, 365 F.3d 697–98; see also United
States v. Angulo, 4 F.3d 843, 847 (9th Cir. 1993) (stating that
a court can consider “the content of the allegations, the
seriousness of the alleged misconduct or bias, and the
credibility of the source” in determining if the defendant has
met his or her burden).
C.
Von Tobel requests that we expand the certificate of
appealability to include his claims of actual innocence and
VON TOBEL V. BENEDETTI 19
ineffective assistance of counsel. See 28 U.S.C.
§ 2253(c)(1); 9th Cir. R. 22-1(e). We decline to do so
because he has not made a “substantial showing of the denial
of a constitutional right.” 28 U.S.C. § 2253(c)(2).
III.
For these reasons, the district court correctly denied Von
Tobel’s petition for a writ of habeas corpus under 28 U.S.C.
§ 2254.
AFFIRMED.