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,

v.

NOAH NAGY, Warden,

Respondent-Appellee.

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No. 18-1751

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 

>
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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, firstdegree 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 
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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-ofthe-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.