United States v. 2005-07-19 | 03-17256 | SIMS VROWLAND | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 MICHAEL A. SIMS,
Petitioner-Appellant, No. 03-17256
v. D.C. No.
 JAMES ROWLAND, Director of the CV-01-02355-MMC
California Department of OPINION
Corrections,
Respondent-Appellee. 
Appeal from the United States District Court
for the Northern District of California
Maxine M. Chesney, District Judge, Presiding
Argued and Submitted
February 10, 2005—San Francisco, California
Filed July 20, 2005
Before: J. Clifford Wallace, Johnnie B. Rawlinson, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Bybee
8497

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COUNSEL
Walter F. Brown, Jr., Ali Kazemi, Orrick, Herrington, and
Sutcliffe, LLP, San Francisco, California, for petitioner-
appellant Michael Sims.
Jeremy Friedlander, Office of the California Attorney Gen-
eral, San Francisco, California, for respondent-appellee James
Rowland, Director of the California Department of Correc-
tions.
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OPINION
BYBEE, Circuit Judge:
We must decide whether a state court’s failure to hold an
evidentiary hearing sua sponte when presented with evidence
of juror bias is contrary to, or an unreasonable application of,
clearly established federal law as determined by the United
States Supreme Court. 28 U.S.C. § 2254(d)(1) (2000). We
hold that it is not. Accordingly, we affirm the decision of the
district court denying the appellant’s petition for a writ of
habeas corpus.
I
The appellant, Michael Sims, was charged in California
Superior Court with, inter alia, one count of first degree rob-
bery and two counts of second degree robbery with enhance-
ments for infliction of great bodily injury. See CAL. PENAL
CODE §§ 211, 12022.7. Several hours after his case was sub-
mitted to the jury for deliberation, the court received a note
from the jury foreman reading as follows:
We the jury in this case request the following: Dis-
cussion about the forms we filled out before jury
selection. There’s considerable alarm among jurors
about Mr. Simms [sic] being allowed to review our
forms. We thought we were under the protection of
anonymity. The jurors viewed he was talking [sic]
notes while reviewing the forms.
With both the prosecutor and defense counsel’s written
approval, the trial judge responded with the following note:
In response to your most recent request, please be
advised that none of the parties ever had your
addresses or telephone numbers or other identifying
information . . . . You will also recall that at the com-
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mencement of the jury selection process I informed
you that the court reporter’s transcript relating to that
portion of the trial is ordered to be sealed and not
made available to any party or person, unless good
cause is shown . . . . Likewise, the copies of the
juror’s questionnaire that the district attorney and the
defense attorney had during the jury selection pro-
cess, was ordered by the court to be returned to the
clerk and those copies have been shredded and
destroyed. I hope that this is a satisfactory answer to
your inquiry. If it is not, please send me a further
communication.
Subsequently, the jury sent a second note, this time request-
ing “a copy of the questionnaire that the defense attorney/
defendant did get to see — even a blank form.” The note fur-
ther inquired as to whether the juror’s “names, [and/or] places
of employment [were] blocked out,” expressing lingering con-
cern “about whether [their] names and employers were on the
form.” Again with the approval of both parties, the judge
responded by providing the jurors a blank questionnaire. The
record does not indicate that the judge held a hearing, formal
or informal, prior to either response, or that defense counsel
requested such a hearing.
Approximately one hour after the judge’s second response,
the jury reached a verdict, finding Sims guilty of two counts
of second degree robbery and one count of first degree rob-
bery. Sims was sentenced to an aggregate term of sixty-three
years to life.
Shortly thereafter, Sims sought review by the California
Court of Appeal, arguing that his conviction violated his
Fourteenth Amendment due process rights. The court rejected
this claim, concluding that Sims had not established that his
verdict was negatively influenced by the jurors’ fear of
recourse. See People v. Sims, No. A079107, at *9 (Cal. Ct.
App. Dec. 17, 1999). On the contrary, the court reasoned that
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a “much stronger hypothesis is that, if fear influenced the
jurors at all, it was in the direction of acquittal.” Id. at *11
(emphasis in original). Accordingly, the court denied Sims’s
due process claim, holding that “any error in not conducting
a formal inquiry into whether jurors were improperly influ-
enced by fear of Sims is not shown to be prejudicial.” Id. The
California Supreme Court denied review.
Sims next petitioned the United States District Court for the
Northern District of California for a writ of habeas corpus,
reasserting his due process claim. Relying on our decision in
Tracey v. Palmateer, 341 F.3d 1037, 1045 (9th Cir. 2003), the
district court denied the petition, reasoning that due process
does not require the trial court to question the jurors any time
evidence of juror bias comes to light. See Sims v. Rowland,
No. C-01-2355 MMC (N.D. Cal. Oct. 14, 2003) (Order Deny-
ing Petition for Writ of Habeas Corpus). In addition, the court
observed that, even assuming that the trial judge erred by not
questioning the jurors as to whether fear of Sims affected their
deliberations, Sims had not demonstrated that the error preju-
diced him. Id. at *8 (citing Brecht v. Abrahamson, 507 U.S.
619, 638 (1993)). Accordingly, the court held that the state
court’s decision denying post-conviction relief was not objec-
tively unreasonable.
Sims timely appealed to this court.
II
This court reviews de novo a district court’s denial of a
petition for a writ of habeas corpus. See Alvarado v. Hill, 252
F.3d 1066, 1068 (9th Cir. 2001). It is undisputed that the
Antiterrorism and Effective Death Penalty Act of 1996, Pub.
L. No. 104-132, 110 Stat. 1214 (1996) (“AEDPA”), governs
our review of the California state court’s decision denying
post-conviction relief on the merits.
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Under AEDPA, Sims is entitled to habeas relief “with
respect to any claim that was adjudicated on the merits in
State court proceedings” only if one of two conditions of def-
erential review are met: “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)(1)-(2).1
See also Lambert v. Blodgett, 393 F.3d 943, 973-74 (9th Cir.
2004). In this appeal, Sims argues that the California Court of
Appeal’s decision was both contrary to, as well as an unrea-
sonable application of, clearly established federal law.
The phrase “clearly established Federal law” refers to the
holdings, as opposed to the dicta, of Supreme Court decisions.
See Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (citing Wil-
liams v. Taylor, 529 U.S. 362, 412 (2000)); Lambert, 393
F.3d at 974. A state court decision is contrary to clearly estab-
lished federal law if the state court either applies a rule that
contradicts the governing law set forth by the Supreme Court
or arrives at a different result when confronted by a set of
facts that are materially indistinguishable from a decision of
the Supreme Court. See Williams, 529 U.S. at 405-06.
Although the statutory formulation restricts federal law to
Supreme Court precedent, we have previously observed that
“Ninth Circuit precedent may be persuasive authority for pur-
poses of determining whether a particular state court decision
is an unreasonable application of Supreme Court law, and
may also help us determine what law is clearly established.”
Robinson v. Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004) (cit-
ing Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000))
1Section 2254(e)(1) is inapplicable to this case because the federal dis-
trict court did not grant Sims an evidentiary hearing. See Taylor v. Mad-
dox, 366 F.3d 992, 1000 (9th Cir. 2004).
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(internal quotations omitted). However, the Court has empha-
sized that “[a] federal court may not overrule a state court for
simply holding a view different from its own, when the prece-
dent from [the Supreme] Court is, at best, ambiguous.” Mitch-
ell v. Esparza, 540 U.S. 12, 17 (2003) (per curiam). Thus,
“[a]lthough lower federal court and state court precedent may
be relevant when that precedent illuminates the application of
clearly established federal law as determined by the United
States Supreme Court, if it does not do so, it is of no
moment.” Casey v. Moore, 386 F.3d 896, 907 (9th Cir. 2004).
See also Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir.
2002) (“[D]ecisions of [the Supreme] Court are the only ones
that can form the basis justifying habeas relief; ‘lower federal
courts cannot themselves establish such a principle with clar-
ity sufficient to satisfy the AEDPA bar.’ ”) (citing Williams,
529 U.S. at 381). In short, our reference to Ninth Circuit pre-
cedent cannot be used to circumvent the requirement that, in
order to grant the writ, we must be persuaded that the state
court’s decision is contrary to clearly established Supreme
Court precedent.
AEDPA also permits relief where the state court’s adjudi-
cation “resulted in a decision that . . . involved an unreason-
able application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). Importantly, “an unreasonable applica-
tion of federal law is different from an incorrect application
of federal law.” Williams, 529 U.S. at 410. See also id. at 411
(“a federal habeas court may not issue the writ simply because
that court concludes in its independent judgment that the rele-
vant state-court decision applied clearly established federal
law erroneously or incorrectly.”) A state court decision is an
unreasonable application of Supreme Court precedent when
the court applies those precedents to the facts in an objec-
tively unreasonable manner. See Brown v. Payton, 544 U.S.
___, ___ (2005) (citing Williams, 529 U.S. at 405). This
phrase also encompasses an unreasonable failure to extend the
holding or legal principle of a Supreme Court decision to a
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situation in which it “should have controlled.” Ramdass v.
Angelone, 530 U.S. 156, 166 (2000) (plurality opinion).
We apply these principles and standards of review to
address Sims’s argument that the decision of the California
Court of Appeals was both contrary to, and an unreasonable
application of, clearly established federal law.
A
Sims first argues that the decision of the California Court
of Appeal is contrary to clearly established federal law
because the court’s reason for denying his due process claim
— namely, because he failed to demonstrate prejudice — was
erroneous. Specifically, he argues that the state trial court’s
failure to investigate potential juror bias presents structural
error which requires a new trial even where there is no show-
ing of actual prejudice.2
2We note some latent confusion in our case law concerning whether,
under AEDPA, it is necessary or permissible for us to review the “reason-
ing” used by the state court, or whether we are simply to review the “deci-
sion” of that court adjudicating the merits of the petitioner’s claim.
Compare Hernandez v. Small, 282 F.3d 1132, 1140 (9th Cir. 2002)
(“[T]he intricacies of the state court’s analysis need not concern us; what
matters is whether the decision the court reached was contrary to control-
ling federal law.”) (emphasis in original), with Van Lynn v. Farmon, 347
F.3d 735, 741 (9th Cir. 2003) (“[A] federal court may not avoid granting
habeas relief by positing an alternative reason for the state court’s decision
that might have enabled the state court to reach the same result, where the
record reveals that the state court did not base its decision on that alterna-
tive reason.”). The source of the confusion appears traceable, in part, to
dicta from a per curiam decision of the Supreme Court. See Early v.
Packer, 537 U.S. 3, 8 (2002) (noting that a state court need not even be
aware of the Supreme Court’s cases, “so long as neither the reasoning nor
the result of the state-court decision contradicts them”). Prior to the Early
dicta, the circuits generally agreed that AEDPA did not invite federal
courts to review a state court’s reasoning process. See, e.g., Cruz v. Miller,
255 F.3d 77, 86-87 (2d Cir. 2001); Neal v. Puckett, 286 F.3d 230, 246 (5th
Cir. 2002) (en banc) (per curiam); Hennon v. Cooper, 109 F.3d 330, 334-
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Sims’s assertion is supported to some extent by our deci-
sion in Dyer v. Calderon, wherein we noted the similarities to
a biased judge and stated that “[t]he presence of a biased juror
cannot be harmless; the error requires a new trial without a
showing of actual prejudice.” 151 F.3d 970, 973 n.2 (9th Cir.
1998) (en banc) (citing United States v. Allsup, 566 F.2d 68,
71 (9th Cir. 1977)). Indeed, trial before a biased judge is an
archetypal example of a constitutional error that necessarily
renders a trial fundamentally unfair and, for that reason, is not
amenable to harmless error analysis. See Neder v. United
States, 527 U.S. 1, 8 (1999) (noting that the Supreme Court
has found “an error to be ‘structural’, and thus subject to auto-
matic reversal, only in a ‘very limited class of cases’,” and
citing Tumey v. Ohio, 273 U.S. 510 (1927), for the proposi-
tion that trial before a biased judge presents such a case). Yet,
we have never held that the failure to investigate potential
juror bias presents structural error. Cf. United States v. Duktel,
192 F.3d 893, 899 n.4 (9th Cir. 1999) (acknowledging that
jury tampering presents trial error); Thompson v. Borg, 74
F.3d 1571, 1574 (9th Cir. 1996) (concluding that a venire-
35 (7th Cir. 1997). After Early, the dicta has been employed by circuit
courts to grant habeas relief without conducting any analysis of the merits
of the petitioner’s claims, aside from reviewing the “reasoning” used by
the state court. See Van Lynn, 347 F.3d at 741.
To our knowledge, the Supreme Court has never granted habeas relief
solely on the basis of the “reasoning” used by the state court. In the only
subsequent Supreme Court opinion to date citing Early in a way that sug-
gests that the state court’s reasoning alone can provide the basis for grant-
ing habeas relief, the Court incorporated a much different version of
Early’s dicta into its holding. See Mitchell, 540 U.S. at 17 (“As the Ohio
Court of Appeals’ decision does not conflict with the reasoning or the
holdings of our precedent, it is not ‘contrary to . . . clearly established Fed-
eral law.’ ”) (emphasis added). It is one thing for a state court decision to
conflict with the Supreme Court’s reasoning; it is quite another to criticize
the state court’s reasoning irrespective of whether its decision conflicts
with Supreme Court precedent. While the issue is not dispositive in this
appeal, we highlight this intra-circuit conflict because we believe it to be
an issue of exceptional importance in our habeas and AEDPA case law.
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man’s prejudicial remark during jury selection presents trial
error).
More importantly, no Supreme Court precedent holds that
a failure to investigate potential juror bias presents structural
error, and even if we were to read Dyer to address potential
juror bias, it would be insufficient authority under AEDPA.
See Hernandez, 282 F.3d at 1140. Although the Supreme
Court recognized in Tumey v. Ohio that a trial before a biased
judge presents structural error, it has not applied this principle
to trials by biased jurors, much less in cases where there is
only potential bias. 273 U.S. 510 (1927).
Accordingly, it remains for us to decide whether the state
court’s failure to hold an evidentiary hearing sua sponte when
presented with evidence of juror bias is contrary to, or an
unreasonable application of, clearly established federal law as
determined by the United States Supreme Court. 28 U.S.C.
§ 2254(d)(1). We hold that it is not. The reason is simple: the
Supreme Court has not yet decided whether due process
requires a trial court to hold a hearing sua sponte whenever
evidence of juror bias comes to light.
B
[1] The Supreme Court has twice addressed the propriety
of holding a hearing to investigate evidence of juror bias. See
Remmer v. United States, 347 U.S. 227 (1954); Smith v. Phil-
lips, 455 U.S. 209 (1982). Neither case mandates a hearing
whenever evidence of juror bias is raised; nor does either case
address the situation presented here, where no party has
requested a hearing to investigate evidence of juror bias.
In Remmer, 347 U.S. at 228, a juror in a federal criminal
trial reported to the trial judge that he had been contacted by
a third party and told that he (the juror) could profit from
bringing in a verdict favorable to the petitioner. The judge
alerted the prosecution, but not the defense, to this evidence.
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After the FBI investigated the incident, both the judge and the
prosecution reviewed the FBI report, without notice to or par-
ticipation by the defense, and “apparently concluded that the
statement to the juror was made in jest.” Id. at 228. Nothing
further was done or said about the matter. After the verdict
was returned, the petitioner became aware of the investigation
and requested a hearing on the issue of possible bias. He also
moved for a new trial. The district court denied the motion
without holding the requested hearing. Under these circum-
stances, the Court stated that the trial court should not have
decided “and take[n] final action ex parte on information such
as was received in this case, but should determine the circum-
stances, the impact thereof upon the juror, and whether or not
it was prejudicial, in a hearing with all interested parties per-
mitted to participate.” Id. at 229-30. Accordingly, the Court
remanded to the district court with instructions to hold a hear-
ing, in which all parties could participate, on the issue of pos-
sible juror bias.
[2] Remmer provides little prospective guidance as to when
a hearing is required or even appropriate. One might argue
that Remmer stands for the proposition that when confronted
with evidence of jury tampering and an explicit request for a
hearing on the issue of juror bias, the trial court must hold the
requested hearing. See Tracey v. Palmateer, 341 F.3d 1037,
1044 (9th Cir. 2003) (“Remmer’s command that hearings are
warranted in every case is unique to the tampering context,
where the potential effect on the jury is severe.”) (emphasis
in original). A similarly plausible reading posits that the Rem-
mer Court merely condemned the ex parte manner in which
the trial judge and the prosecutor handled the situation with-
out the knowledge of the defendant or his counsel. In either
case, such a rule would have little application in a context
such as this, where there are no allegations of jury tampering
and the defendant not only fails to request a hearing but,
through counsel, ostensibly approves of the manner in which
the trial judge responds to evidence of juror bias.
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Nearly thirty years later, the Supreme Court revisited the
issue of juror bias, this time in the habeas context. See Smith,
455 U.S. at 214-16. Smith involved a juror who, during the
pendency of a state court trial, applied to the state District
Attorney’s office for employment as an investigator. Id. at
212. With full knowledge of the juror’s application, the prose-
cution opted not to inform the court or defense counsel until
after the verdict was returned. Id. at 212-13. Once informed
of the application, the defendant moved to set aside the ver-
dict. Id. at 213. The trial court held a hearing on the motion,
at which both the prosecution and the juror testified. Id. After-
wards, the court determined that the juror was not, in fact,
biased as a result of his application and no evidence suggest-
ing a “sinister or dishonest motive” on the part of the prose-
cuting attorneys existed. Id. at 214. Finding the trial court’s
hearing insufficient, the federal district court subsequently
granted habeas relief, ordering a new trial, and the Second
Circuit Court of Appeals affirmed. Id.
[3] The Supreme Court reversed, finding the trial court’s
hearing sufficient to comply with due process. The bulk of the
Court’s opinion was devoted to justifying the adequacy, as a
matter of due process, of the hearing conducted in the state
trial court. See id. at 215 (“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.”). The
Court emphasized that, rather than ordering a new trial when-
ever allegations of juror bias are raised, “determinations [of
juror bias] may properly be made at a hearing like that
ordered in Remmer and held in this case.” Id. at 217. Observ-
ing that “in the federal system a post-trial hearing such as that
conducted here is sufficient to decide allegations of juror par-
tiality,” the Court declined to require a state to do more in
order to comply with the Due Process Clause of the Four-
teenth Amendment. Id. at 218 (emphasis added). By focusing
on the sufficiency of the procedures employed by the state
trial court at the defendant’s request, Smith did not answer or
even comment on the constitutional question presented in this
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case: whether a hearing is required whenever evidence of
juror bias is brought to light despite the absence of a request
from defense counsel.
Nonetheless, Sims points to Remmer and Smith in support
of his argument that the decision of the California Appeals
Court is contrary to, or an unreasonable application of, clearly
established Supreme Court precedent. We find no support for
this proposition in either case.
C
[4] We have previously addressed the question of whether
a hearing is required whenever evidence of juror bias is
brought to light. In Tracey, 341 F.3d at 1044, we concluded
that “Remmer and Smith do not stand for the proposition that
any time evidence of juror bias comes to light, due process
requires the trial court to question the jurors alleged to have
bias.” Rather, we concluded that when read in combination,
these cases provide “a flexible rule.” Id. The elasticity of this
rule is reflected in our own cases interpreting the Fifth
Amendment’s Due Process Clause, which uniformly hold that
a federal court is not required to hold a hearing in order to
comply with due process, but should “consider the content of
the allegations, the seriousness of the alleged misconduct or
bias, and the credibility of the source” when determining
whether a hearing is required. Id. (citing United States v.
Angulo, 4 F.3d 843, 847 (9th Cir. 1993). See also United
States v. Hanley, 190 F.3d 1017, 1031 (9th Cir. 1999) (con-
cluding that the district court complied with due process
despite its refusal to hold an evidentiary hearing where “[i]t
considered the content and the seriousness of the alleged
statements [of juror bias] and properly determined that such
vague statements did not expose Defendants to unfair preju-
dice”); United States v. Langford, 802 F.2d 1176, 1180 (9th
Cir. 1986) (“While we recognize that where a trial court
learns of a possible incident of jury misconduct, it is prefera-
ble to hold an evidentiary hearing . . . not every allegation [of
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misconduct] requires a full-dress hearing”); United States v.
Halbert, 712 F.2d 388, 389 (9th Cir. 1983) (affirming the dis-
trict court’s refusal to hold a hearing regarding extraneous
information considered by a juror when the district court
knew the exact scope and nature of the information). It would
be anomalous to require more of a state trial judge in order to
comply with the Fourteenth Amendment’s Due Process
Clause. See Smith, 455 U.S. at 218 (“[I]f in the federal system
a post-trial hearing such as that conducted here is sufficient to
decide allegations of juror partiality, the Due Process Clause
of the Fourteenth Amendment cannot possibly require more
of a state court system.”).
[5] In sum, contrary to Sims’s argument, Remmer does not
speak to the issue presented here, and “Smith leaves open the
door as to whether a hearing is always required and what else
may be ‘sufficient’ to alleviate any due process concerns.”
Tracey, 341 F.3d at 1044. Thus, we are persuaded that Smith
and Remmer do not stand for the proposition that a hearing is
required in every case of potential juror bias.
[6] Our ruling in Dyer, 151 F.3d at 973, is not to the con-
trary. In Dyer we held that
[a] court confronted with a colorable claim of juror
bias must undertake an investigation of the relevant
facts and circumstances. An informal in camera
hearing may be adequate for this purpose; due pro-
cess requires only that all parties be represented, and
that the investigation be reasonably calculated to
resolve the doubts raised about the juror’s impartial-
ity. So long as the fact-finding process is objective
and reasonably explores the issues presented, the
state trial judge’s findings based on that investiga-
tion are entitled to a presumption of correctness.
Id. at 974-75 (citations omitted). Rather than establishing a
“hard-and-fast rule requiring [an] automatic, full-fledged
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hearing,” Tracey, 341 F.3d at 1044 n.4, our decision in Dyer
merely observed that the Fourteenth Amendment Due Process
Clause forbids a trial judge from remaining idle in the face of
evidence indicating probable juror bias. The extent of “inves-
tigation” required to comply with due process was not
addressed. Thus, even if AEDPA permitted us to grant habeas
relief where the state court decision is contrary to clearly
established Ninth Circuit precedent, we could not do so in this
case. Although “Ninth Circuit precedent may be persuasive
authority for purposes of determining whether a particular
state court decision is an unreasonable application of Supreme
Court law,” Robinson, 360 F.3d at 1057 (internal quotations
omitted), in this case it only persuades us that federal law on
this issue is not clearly established as required by AEDPA.
See 28 U.S.C. § 2254(d)(1).3
[7] Furthermore, the state court’s decision cannot be
deemed contrary to Smith and Remmer under the second basis
provided for in Williams, as neither case controls the outcome
of this appeal. See Williams, 529 U.S. at 405-06 (reasoning
that a state court’s decision is contrary to clearly established
federal law if the state court is confronted by a set of facts that
are materially indistinguishable from a decision of the
Supreme Court but arrives at a different result). Rather, both
cases are easily distinguished.
3Although we decline to hold that the trial judge had a duty, sua sponte,
to conduct a hearing as a matter of clearly established Supreme Court pre-
cedent, we note that the record is unclear as to whether or not the trial
judge actually failed to undertake an “investigation” adequate to comport
with our decision in Dyer, 151 F.3d at 974-75. What is clear is that the
trial judge did not simply ignore the evidence of potential bias, but rather
attempted to address the concerns of the jurors through his responses,
thereby alleviating the foundation of any such bias. It is undisputed that
defense counsel approved of the trial judge’s actions through written
approval of these responses, and refrained from requesting a hearing either
during or after the trial. Neither of these facts supports a finding that the
trial judge abdicated his duty to investigate bias.
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First, in both Smith and Remmer the defendant explicitly
requested that the trial court conduct a hearing on the issue of
juror bias. No such request was made in this case. Indeed, in
Sims’s case, unlike in Smith and Remmer, defense counsel
approved, in writing, the form and content of the trial judge’s
response to the evidence of juror bias. The Supreme Court has
not yet ruled on a trial judge’s duty in the face of such
approval. Finally, Remmer — the only case in which the
Supreme Court actually ordered a hearing — is categorically
different from the case at bar, as it concerned allegations of
outright jury tampering sufficient to prompt an FBI investiga-
tion. Sims has alleged, at most, incidental and unintentional
juror influence.
[8] Because the California Court of Appeal did not either
apply a rule that contradicts the governing law set forth by the
Supreme Court or arrive at a different result when confronted
by a set of facts that are materially indistinguishable from a
decision of the Supreme Court, we hold that the state court’s
decision, denying petitioner’s due process claim on the merits,
is not contrary to clearly established federal law as deter-
mined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).
D
[9] For similar reasons, the state court’s decision cannot be
deemed an “unreasonable application” of Smith and Remmer
to the facts of Sims’s case. See Williams, 529 U.S. at 409
(observing that a state court decision is an unreasonable appli-
cation of Supreme Court precedent when the court applies
those precedents to the facts in an objectively unreasonable
manner). Sims argues that despite his counsel’s approval of
the judge’s response to the evidence of juror bias, the trial
judge had an affirmative and independent duty to conduct an
investigation into the potential bias and he failed to do so.
Specifically, Sims argues that the judge should have, at least,
held an informal hearing to inquire into the bias and admonish
the jurors.
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[10] We have not been directed to, nor can we identify, any
decision of the Supreme Court that can rationally be under-
stood to stand for the proposition that a trial judge has a duty,
sua sponte, to conduct a hearing when presented with facts
such as those alleged by Sims. Instead of referring us to a
clear statement by the Supreme Court establishing a trial
judge’s sua sponte duty to hold some type of hearing — or,
indeed, a hearing at all — Sims relies on two patently equivo-
cal words in Smith: due process requires “a trial judge ever
watchful to prevent prejudicial occurrences and to determine
the effect of such occurrences when they happen.” Smith, 455
U.S. at 217 (emphasis added). From these words Sims would
have us find an affirmative and independent duty, on the part
of a trial judge, to hold a hearing to investigate any evidence
suggesting the possibility of juror bias, as a matter of
Supreme Court law. We decline to infer such a rule from two
words written in a different context.
It is simply untenable for us to conclude that the state court
was “objectively unreasonable” in refusing to find that the
trial judge was required to hold a hearing in this case when
we ourselves have clearly stated that a hearing is “not man-
dated every time there is an allegation of juror bias.” Tracey,
341 F.3d at 1044. In short, AEDPA does not permit us to con-
clude that the state court’s denial of Sims’s due process claim
on the merits was an unreasonable application of clearly
established federal law as determined by the Supreme Court.
See 28 U.S.C. § 2254(d)(1).4
[11] Accordingly, we hold that it was not an objectively
unreasonable application of federal law for the California
Court of Appeal to refrain from imposing a sua sponte duty
to conduct a hearing as a matter of Fourteenth Amendment
due process.
4Because we find that there is no clearly established duty for a trial
judge to sua sponte conduct a hearing on claims of potential juror bias, we
need not reach the question of whether or not the violation of such a duty
was prejudicial to the appellant in this case.
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III
[12] We hold that the decision of the California Court of
Appeal is not contrary to, nor an unreasonable application of,
clearly established federal law as determined by the Supreme
Court of the United States. 28 U.S.C. § 2254(d)(1). We there-
fore affirm the district court’s decision denying Appellant’s
petition for a writ of habeas corpus.
AFFIRMED.
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